Bertram Zweibon v. John N. Mitchell, Individually and as Attorney General of the United States of America

WILKEY, Circuit Judge

(concurring and dissenting): *

I concur in the plurality’s finding that the wiretaps on the Jewish Defense League were placed pursuant to the President’s “foreign affairs” power, and also in the holding that the warrantless surveillance nevertheless was in violation of the Fourth Amendment. If a “foreign affairs” exemption from the warrant requirement exists, it exists only for a narrow category of wiretaps on foreign agents or collaborators with a foreign power. As this is not such a case, we leave for another time resolution of the question of the existence and precise parameters of this special constitutional exemption.

I must strongly dissent, however, from my colleagues’ startling conclusion that all constitutionally objectionable wiretaps are perforce in violation of Title III and that, therefore, the statutory damages provision of section 2520 is applicable to this case. In my view, the case should be remanded to the District Court solely for consideration of the merits of a claim for damages under the Fourth Amendment.1

The appellants’ claim of damages for an unlawful search and seizure rests on both statutory and constitutional grounds. The constitutional claim will be discussed in Part II of this opinion. Part I examines the alternative prayer under section 2520 of the Omnibus Crime Control and Safe Streets Act. That section provides for the recovery of civil damages by those “person[s] whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter [i. e., Title III of the Act, 18 U.S.C. §§ 2510-2520].”2 The pivotal issue under the claim for statutory (as distinct from constitutional) damages, then, is whether the appellees violated any provision of Title III when they placed wiretaps on the phones of the Jewish Defense League (JDL) without any prior judicial approval. Resolution of this issue depends, first, upon whether the wiretaps were placed pursuant to a “foreign affairs” surveillance and, second,upon whether the strict procedural requirements of Title III have any application to this kind of surveillance.

I. THE STATUTORY CLAIM

A. The Scope of a “Foreign Affairs” Surveillance

Title III of the Omnibus Crime Control and Safe Streets Act3 authorizes the *690use of electronic surveillance for the classes of crimes set forth in section 2516. Sections 2511 and 2520 provide criminal and civil penalties for violations of the Act. Section 2511, however, also specifies several categories of conduct which are either not unlawful or are not regulated by the Act. One such category is defined in subsection (3) which provides in pertinent part:

Nothing contained in this chapter . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.4

According to the Senate Report of the Act,5 the section 2511(3) disclaimer was intended “to reflect a distinction between the administration of domestic criminal legislation [by the President] . and the conduct of foreign affairs.” 6 In the latter area, as the disclaimer itself reads, Title III does not “limit the constitutional power of the President .to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power u 7

The appellants in this case apparently wOuld construe this language to allow the President freedom of action in intelligence gathering only when the country was actually exposed to an armed attack. Neither of the principal reasons given by the Government for conducting the wiretaps in question — (1) the severe strain which the activities of the JDL placed on the conduct of our relations with the U.S.S.R.; (2) the threat of retaliation by Soviet citizens against American Embassy personnel in Moscow — involved a serious danger of war with the Soviet Union. It follows, appellants argue, that the Executive was not justified in treating the conduct of this wiretap differently from an ordinary criminal wiretap.

The appellants’ position is refuted by both the language of the disclaimer itself and by the function which the surveillance served. In the first place, section 2511(3) preserves the President’s authority to protect the nation not only against “actual or potential attack” but also against “other hostile acts” of a foreign country. That this disjunctive wording was intentional is made clear by the Senate Report, which explains that the President’s authority is unfettered by Title III “to obtain information by whatever means to protect the United States from the acts of a foreign power including actual or potential attack or foreign intelligence activities.”8 “Hostile acts of a foreign power,” therefore, *691is clearly a category which includes armed aggression against this country only as one of its components. It would certainly appear, then, that the prevention of an attack on American citizens abroad also fits within that broader category. It is difficult to conceive of a more appropriate situation for utilization of the President’s foreign affairs power than in the protection of American Embassy personnel in another country.

Equally important, in view of the responsibility of the Executive to conduct our foreign relations, and the intent of Congress in section 2511(3) to recognize the informational requirements which inhere in the proper exercise of this responsibility,9 the purview of the term “hostile acts” would also appear to include inimical diplomatic retaliation. That the well-being of this country can suffer greatly from a breakdown of friendly relations with a country like the Soviet Union is beyond question. If the President has any special investigative prerogative by virtue of his foreign affairs power, it must include a situation where a rupture of diplomatic ties is threatened.

This position is buttressed by the conduct of the surveillance in question. The function which the surveillance was intended to serve was not primarily one of uncovering evidence of domestic crime. Rather, the purpose was to acquire advance knowledge of the tactics of physical intimidation and harassment practiced by the JDL on Russian diplomatic personnel in this country — with the avowed design of “creating] a crisis between the U.S. and the U.S.S.R.”10 — in order to minimize the disruptive effect of these activities on our relations with the Soviet Union. This was an informational surveillance of the type Congress intended to separate from ordinary criminal wiretaps by virtue of the section 2511(3) disclaimer. It was an intelligence operation undertaken pursuant to the President’s constitutional power to conduct this country’s foreign affairs, as distinct from his duty to administer domestic criminal legislation.11

*692Thus, I concur in the plurality’s determination that the wiretaps in question were placed pursuant to the President’s special responsibility to conduct the country’s foreign affairs, within the meaning of the section 2511(3) disclaimer. This does not mean the surveillance was immune from minimal constitutional requirements. Part II below elaborates my agreement with the plurality on this point. To my mind, however, it is clear that if a particular surveillance falls into the category of foreign affairs, as in this case, or domestic security, as in United States v. United States District Court (Keith),12 its validity is subject only to constitutional strictures.13 I strongly disagree with the plurality’s view that *693the strict procedural requirements of Title III — and, concomitantly, the damages provision contained in section 2520 — are applicable to these special kinds of surveillance.

B. The Meaning of the Section 2511(3) Disclaimer

In Keith, the Supreme Court was called upon to interpret the significance of the section 2511(3) disclaimer as it related to Presidential authority to gather intelligence information concerning the internal security of the country. The Court found “the conclusion inescapable that Congress' only intended to make clear that the Act simply did not legislate with respect to national security surveillances.”14 For Congress to have dealt with “the important and complex area of national security in a single brief and nebulous paragraph would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act.”15

This rationale would appear to apply with even greater force to a case involving intelligence gathering concerning the external security of the country. It has long been recognized that the President has special constitutional responsibilities and prerogatives in the field of foreign affairs.16 Congress intended to respect those prerogatives by virtue of section 2511(3). “Few would doubt this, as the section refers — among other things — to protection ‘against actual or potential attack or other hostile acts of a foreign power.’ ”17 Moreover, the factors which differentiate auditory searches for evidence of a specific crime from information-gathering surveillances are particularly applicable to foreign intelligence operations. Often the uncovering of evidence of criminal activity is only a secondary objective. The primary objective is to obtain intelligence upon which the President can base an informed judgment in the area of foreign affairs.

The rigid procedural requirements of Title III and the substantive necessity of a prior showing of probable cause to suspect criminal activity are not geared toward this kind of informational surveillance. That Congress recognized and intended to point up this limitation on the reach of Title III is made quite clear by the discussion of the rationale for section 2511(3) contained in the Senate’s Report of the Act. Its direct relevance to this and other issues involved in the case at bar merits an extended quote:

Paragraph (3) is intended to reflect a distinction between the administration of domestic criminal legislation not constituting a danger to the structure or existence of the Government and the conduct of foreign affairs. It makes it clear that nothing in the proposed chapter or other act amended by the proposed legislation is intended to limit the power of the President to obtain information by whatever means to protect the United States from the acts of a foreign power including actual or potential attack or foreign intelligence activities, or any other danger to the structure or existence of the Government. Where foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisioned for the administration of domestic criminal legislation is not intended necessarily to be applicable. The two areas may, *694however, overlap. Even though their activities take place within the United States, the domestic Communist party and its front groups remain instruments of the foreign policy of a foreign power (Communist Party, U. S. A. v. Subversive Activities Control Board, 81 S.Ct. 1357, 367 U.S. 1 [6 L.Ed.2d 625] (1961)). Consequently, they fall within the field of foreign affairs and outside the scope of the proposed chapter. Yet, their activities may involve violations of domestic criminal legislation. See Abel v. United States, 80 S.Ct. 683, 362 U.S. 217 [4 L.Ed.2d 668] (1960). These provisions of the proposed chapter regarding national and internal security thus provide that the contents of any wire or oral communication intercepted by the authority of the President may be received into evidence in any judicial trial or administrative hearing. Otherwise, individuals seeking the overthrow of the Government, including agents of foreign powers and those who cooperate with them, could not be held legally accountable when evidence of their unlawful activity was uncovered incident to the exercise of this power by the President. The only limitations recognized on this use is that the interceptions be deemed reasonable based on an ad hoc judgment taking. into consideration all of the facts and circumstances of the individual case, which is but the test of the Constitution itself (Carroll v. United States, 45 S.Ct. 280, 267 U.S. 132 [69 L.Ed. 543] (1925)). The possibility that a judicial authorization for the interception could or could not have been obtained under the proposed chapter would be only one factor in such a judgment. No preference should be given to either alternative, since this would tend to limit the very power that this provision recognizes is not to be deemed disturbed.18

This language provides strong support for the view that Congress intended a surveillance which falls “within the field of foreign affairs” to be “outside the scope of [Title III].” Most decisively, because it was apparent to Congress that such surveillances would not be authorized or conducted in the same fashion as ordinary criminal wiretaps, the third and last sentence of the section 2511(3) disclaimer specially provides for evidence of domestic crime which is incidentally uncovered during a foreign intelligence operation to be admissible in court, notwithstanding the fact that Title III procedures were not followed. (The only requirement is that the surveillance have met minimal constitutional standards of reasonableness.) If Title Ill’s provisions do not extend to “foreign affairs” intelligence gathering, it would appear quite clear that the Executive’s failure to conduct a surveillance in accordance with those provisions is not in violation of the Act; therefore, the damages provision of section 2520 is inapplicable.

Confronted with the Supreme Court’s unqualified interpretation of the section 2511(3) disclaimer in Keith, and the Senate’s clear explanation of the section’s meaning in its report, Judge Wright, for the plurality, nevertheless argues that. Title III is applicable to this case. First, he suggests a reading of Keith under which the Supreme Court’s view that Congress in Title III “did not legislate” with respect to the kinds of surveillances treated in section 2511(3) would only refer to the question whether the Executive was free of the warrant requirement in conducting such surveillance.19 Second he argues that the Court’s discussion of possible standards and procedures for national security surveillances should be construed as indicating that Title III requirements are controlling in all cases where prior judicial approval is required, but Congress might choose to provide less rigorous procedures that would still *695be constitutionally acceptable.20 Third, he takes the position, in a footnote, that the explanatory statement in the Senate Report is “not inconsistent” with the plurality’s interpretation of section 2511.21

The difficulty with Judge Wright’s first argument is illustrated by the following language from Keith:

The express grant of authority to conduct surveillances is found in § 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity.
Where the Act authorizes surveillance, the procedure to be followed is specified in § 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the information required in such application. [Cite] Subsection (3) prescribes the necessary elements of probable cause which the judge must find before issuing an order authorizing an interception. Subsection (4) sets forth the required contents of such an order. Subsection (5) sets strict time limits on an order. Provision is made in subsection (7) for “an emergency situation”
In view of these and other interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the .Act. We therefore think the conclusion inescapable that Congress only intended to. make clear that the Act simply did not legislate with respect to national security surveillances. [Cite]22

Only the most tenuous argument can be made, in the face of this language, that the Supreme Court’s position in Keith was that the procedures of Title III perforce apply to all surveillances, except for those in which no warrant is constitutionally required. If this were the case, the objects of the surveillance in, Keith themselves would have been eligible to recover statutory damages. That there is no intimation of this possibility in the Court’s opinion is certainly not surprising, for the Court clearly was of the view that the procedural requirements of the Act were never intended to apply to national security surveillances. It was “incongruous” to think that Congress legislated procedures for such surveillances “in a single brief and nebulous paragraph,” especially in view of the care Congress had given in the rest of the act to laying down precise standards for ordinary criminal surveillances. Recognizing that these “interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions” should not be applied to national security or foreign affairs surveillances, the Congress in section 2511(3) made clear that the Act “simply did not legislate” with respect to such operations.

Any doubt as to the Supreme Court’s position — contrary to the plurality’s second argument — is dispelled at the end of the opinion by the Court’s suggestions for other possible statutory standards and procedures to govern domestic security surveillance.23 Although it had ruled that the warrant requirement of the Fourth Amendment was applicable to such surveillance, the Court made clear that the same type of procedures required in Title III for ordinary criminal wiretaps would not be constitutionally *696required for those kinds of operations specified in section 2511(3). The Court recognized that “domestic security surveillance may involve different policy and practical considerations from the surveillance of ‘ordinary crime’ ”24 — in light of the frequent informational, as opposed to evidentiary, objectives of the former. Given these distinctions, the Court observed, “Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III.”25 Among these might be different probable cause standards and relaxed time and reporting requirements. In sum:

We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.26

If the Supreme Court was of the view in Keith that Title III is constituted of “refined requirements for the specified criminal surveillances,” it is certainly difficult to credit the plurality’s position that the Court at the same time believed that Title III was intended to accommodate the very different requirements of domestic security and “foreign affairs” surveillances. Rather, as the Court made crystal clear, its view was that Congress did not intend to legislate with regard to the types of surveillances involved in section 2511(3). This was the purpose of that section. It could hardly have been otherwise, as the Court perceived it, in light of the fact that the interrelated provisions of the Act are often totally inapposite to informational surveillances. ■ •

Thus, the Court’s discussion in Keith of possible standards and procedures was not, as the plurality would have it, merely gratuitous commentary on the flexibility of the Fourth Amendment’s “reasonableness” standard. The Court had the more concrete purpose of affording guidance to the Congress on the kinds of statutory procedures which would be constitutionally acceptable if Congress, after Keith, should decide to legislate in the area of domestic security.

That the Court’s perception of Congressional intent with respect to section 2511(3) was correct is amply supported by the Senate Report of the Act. Its discussion begins with the explanation that “[pjaragraph (3) is intended to reflect a distinction between the administration of domestic criminal legislation . and the conduct of foreign affairs.”27 The Report then emphasizes that “[wjhere foreign affairs and internal security are involved, the proposed system of court ordered electronic surveillance envisioned for the administration of domestic criminal legislation is not intended necessarily to be applicable.” Activities that “fall within the field of foreign affairs” are “outside the scope of the proposed chapter.” Finally, the Report explains, because violations of domestic criminal legislation might be uncovered during a foreign affairs or national security surveillance, which would not necessarily be conducted in accordance with Title III procedures, it was Congress’ intent in the last line of section 2511(3) to make clear that evidence of such criminal conduct is nevertheless admissible against the perpetrators — so long as minimal constitutional requirements are met.

The plurality’s attempt to reconcile the language in the Senate Report with its theory of the case is unpersuasive. The Report does indeed contemplate, in the plurality’s words, “that a post hoc determination of reasonableness [of a section 2511(3) surveillance] will be made *697in criminal proceedings.”28 This does not mean, however, that the Report necessarily expects that a prior warrant would never be obtained in such a case. As the Supreme Court emphasized in Keith, the very “definition of ‘reasonableness’ turns, at least in part, on the more specific commands of the warrant clause.”29 If a warrant was obtained for a particular surveillance, the question of “reasonableness” in subsequent criminal proceedings is reduced to a determination whether probable cause existed for its issuance. If prior judicial approval was not obtained, the subsequent “reasonablness” inquiry must expand to include a determination whether, independent of the existence of probable cause, adequate justification is shown for not having secured a warrant. This is the constitutional requirement.

Certainly, Congress was unsure when it passed Title III whether the President could, as a constitutional matter, justify warrantless wiretaps in “foreign affairs” or “domestic security” cases. It seems equally clear, in view of the Supreme. Court’s analysis in Keith and the language of the Senate Report (e. g., that “foreign affairs” surveillances are “outside the scope of the proposed chapter”), that Congress was unwilling to lay down any statutory requirements for such informational surveillances. Instead, in the words of the Report, Congress left the question of the validity of a particular surveillance in the hands of the courts, for a determination of “reasonable[ness] based on an ad hoc judgment taking into consideration all of the facts and circumstances of the individual ease, which is but the test of the Constitution itself.”30 Significantly, the Report adds, “[t]he possibility that a judicial authorization for the interception could or could not have been obtained under the proposed chapter would be only one factor in such a judgment.”31

The import of this language seems clear. If it appears to the trial judge that the sole objective of a “foreign affairs” or domestic security wiretap was that of gathering specific evidence with regard to one of the crimes enumerated in section 2516 — as opposed, for example, to garnering information to ward off or prevent the “hostile acts” of another country — then he has the discretion to prevent an end run around Title III by holding the surveillance invalid. Contrary to the majority’s view, this appears the logical explanation for the Report’s statement that where foreign affairs and internal security are involved Title III procedures are not intended necessarily to be applicable. Where it appears that the intent of such a surveillance was solely to gather prosecutorial evidence, then a court can hold that Title III procedures should have been followed.

Ironically, the plurality’s own opinion points up the weakness of its position. Having strenuously argued that “Congress intended the procedures and remedies of Title III to apply to all Executive surveillance which, under the Constitution, must be initiated pursuant to judicial warrant,” 32 the plurality adds a “caveat”: 33 Congress did not intend, it now appears, that two provisions at the heart of Title III (i. e., sections 2516 and 2518(l)(b)(i)) be given effect in the case of intelligence-gathering surveillances. Effectively, the plurality’s “caveat” is an attempt to delete from the statute those sections which are most inapposite to “foreign affairs” and domestic security surveillances, in order to justify its holding that the rest of Title Ill’s provisions are applicable. The only justification the plurality gives for so dissecting the Act is that adherence to sections 2516 and 2518(l)(b)(i) would “unduly trammel” the conduct of information-gathering surveillances, while the other provi*698sions of the Act would not “substantially affect” such surveillance.34

It requires little argument to reject the plurality’s approach. The Supreme Court observed in Keith the close interrelation of the Act’s provisions, “delineating permissible interceptions of particular criminal activity upon carefully specified conditions.”35 If Congress had intended to legislate with regard to information-gathering surveillances in Title III (beyond disclaiming such intent, in section 2511(3)), surely it would not have left it to the courts to guess which sections to enforce. Almost certainly, the provisions for such surveillances would have been separated from those for ordinary criminal wiretaps and specially designated. Moreover, it is likely that Congress would not have limited itself to an alteration of the probable cause requirement. (For example, as suggested by the Supreme Court in Keith, the time and reporting requirements might not be so strict as those in section 2518.) The logical view of section 2511(3), supported by the language of the Supreme Court in Keith and the Senate Report of the Act, is that Congress simply determined not to attempt in Title III to tackle the complex and controversial task of laying down procedures for informational as well as evidentiary surveillances.36

The plurality can point to only two instances where statutory language or legislative history might support its position. The first is the phrase in section 2511(3) which states that “[njothing contained in this chapter . . . shall

limit the constitutional power of the President.” Based on this language, the plurality asserts:

[I]t is reasonable to assume that Congress intended to prohibit “unconstitutional” Executive surveillance, which would therefore be “in violation of this chapter” within the comprehension of the damages provision of Title III. [Cite] Thus, even if the procedures of Title III were inapplicable to national security wiretapping, the remedies of Title III should apply to unconstitutional exercises of presidential power.37

This argument collapses virtually of its own weight. It seems clear in section 2511(3) that Congress meant by its use of “constitutional power” only to identify the source of the President’s prerogative in the fields of foreign affairs and national security. If in the body of Title III Congress did not legislate any procedures, or any other requirement, for foreign affairs surveillances, it is difficult to fathom the logic of drawing such surveillance within the ambit of the statute for the sole purpose of assessing damages. If Congress “simply did not legislate” with regard to such surveillances, it did not legislate — period.

The second piece of “evidence” introduced by the plurality is the colloquy with regard to section 2511(3) between Senators Hart, Holland, and McClellan on the Senate floor. The Supreme Court in Keith observed of that discussion, “One could hardly expect a clearer expression of congressional neutrality [concerning] whatever presidential surveillance powers existed in matters affecting the national security.”38 The plurality focuses on a statement by Senator Hart, in which he first affirms that no congressional attempt was being made to define the limits of the President’s powers. He then adds that he has always found those limits “extremely vague, especially in domestic security threats, as opposed to threats from foreign powers.” Specifically:

*699As I recall, in the recent Katz case,* some of the Justices of the Supreme Court doubted that the President has any power at all under the Constitution to engage in tapping and bugging in national security cases without a court order. Section 2511(3) merely says that if the President has such a power, then its exercise is in no way affected by title III.39

The Supreme Court omitted this portion of Senator Hart’s statement from its quotation in Keith, and with good reason. It seems clear that the Senator referred to Katz and the questions surrounding the warrant requirement in domestic security cases only as an example of the “vagueness” of the law in the area covered by section 2511(3). Obviously, under that section, if the President has the authority to order warrant-less wiretaps in domestic security or “foreign affairs” cases, the procedures he employs will not be affected by Title III. It does not necessarily follow, however, that if he does not have this authority, all such surveillances must be conducted in accordance with Title III procedures. Senator Hart does not say this, and neither the Senate Report of the Act or the Supreme Court in Keith supports the proposition.

In sum, there is little basis for the plurality’s position that the procedures of Title III apply to all “foreign affairs” or domestic security surveillances in which prior judicial approval is required. If the procedures of Title III do not apply, the remedies for their violation cannot apply. This does not leave the appellants in this case without a remedy. If, as the next part of this opinion will elaborate, the wiretaps of the JDL were in violation of the Fourth Amendments the appellants have a direct cause of action for damages under the Constitution. They are entitled to a remand to the District Court for an assessment of the merits of their claim and the validity of any defenses the defendants might have.40

II. THE CONSTITUTIONAL CLAIM

A. The Foreign Affairs Exemption — Inner Distinctions and Limitations

The issue which remains is whether the surveillance of the JDL without pri- or judicial approval violated the Fourth Amendment. At the outset, it must be made clear that that question cannot be answered by a simple talismanic reference to the “foreign affairs” power of the President. No matter how certain his constitutional mandate in this or any other area, the President is never free to act in complete disregard of the protection guaranteed each individual by the Bill of Rights. If his foreign affairs authority affords the Executive department an exemption from the requirement of prior judicial approval, it is not because the President can ignore constitutional safeguards in the performance of his duties; rather, it is because, on balance, the exigencies of foreign intelligence gathering outweigh the constitutional value placed on prior judicial approval.

The Supreme Court engaged in just such a comparative analytical approach in Keith, and found that the cost in terms of infringement on Fourth and First Amendment values was too high to justify allowing a national security surveillance to be conducted without a warrant. Appellees in the instant case distinguish the Keith decision by noting that the Court in that case took great pains to observe “[TJhere [was] no evidence of any involvement, directly or indirectly, of a foreign power.”41 That decision “require[d] no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this *700country.”42 This case, on the other hand, clearly does “involve” a foreign power and does require a judgment on the reach of the President’s “foreign affairs” surveillance authority. It can be readily granted, therefore, that the wiretap of the JDL is distinguishable from that of the individuals in Keith, but the problem remains whether the situations are constitutionally different. That question can only be answered by the same kind of balancing process the Supreme Court used in Keith.

If the Government’s view of the Executive’s wiretap authority were placed on a hypothetical spectrum, it would have three parts. At one terminal, where all wiretaps in ordinary criminal cases would be grouped, officials would be required to adhere to the strict procedural requirements of Title III. In the middle would lie surveillances in national security cases, as in Keith Although not subject to the strictures of Title III, these wiretaps would still have to satisfy basic constitutional requirements, including that of prior judicial approval. At the other terminal would rest all surveillances related to the foreign affairs authority of the President to protect the nation from the hostile acts, whether direct attack or diplomatic retaliation, of other countries. According to the Government, the involvement of a foreign power tips the constitutional balance in such fashion that prior judicial approval is not required for this kind of wiretap. In brief, the “reasonableness” standard of the Fourth Amendment is met without a warrant.

Weighing the Government’s rationale for a sweeping “foreign affairs” exemption to the warrant requirement against the inroads such an exemption would make on important Fourth and First Amendment values, I must first conclude that a waiver of such breadth is unjustified. If a “foreign affairs” exemption exists, it is much narrower — encompassing only surveillances on foreign agents and those in criminal collaboration with a foreign power. The Government, in its attempt to justify surveillances of persons because of their involvement or connection with a foreign power, fails to distinguish between two types of involvement which are quite different, although the foreign relations of the United States may be drastically affected in either case. The relationship of the Jewish Defense League with the Soviet Union — characterized by bombs, brickbats, and verbal and written abuse — was extremely antagonistic. To say it was non-collaborative is an understatement. In contrast, the involvement, for example, of Colonel Abel43 with the Soviet Union was that of a trusted and highly valued agent who served his native country by acquiring and transmitting the national security secrets of this country to the Soviets, until his espionage work was cut short by arrest and incarceration. Like Colonel Abel, David Greenglass and the Rosenbergs,44 although United States citizens, served the Soviet Union as espionage agents. All were collaborators with a foreign power.

That the activities of the JDL, the “Colonel Abels,” and various U.S. citizens engaged in espionage for foreign countries all have an impact on our foreign relations and security cannot be denied. That the President and appropriate Executive departments have a duty and a power, derived from the Constitution, to deal with such persons or groups in order to protect the nation against the hostile acts of a foreign power and to preserve national security information is likewise irrefutable. But the issue in the instant case is what means and procedures the Executive is entitled to use *701in discharging its duty. And on that issue it makes a great deal of difference whether the persons or groups “involved with a foreign power” are acting as collaborators or non-collaborators.

Just why this is so can be seen by examining the rationales which have been advanced to justify an exemption from the requirement of prior judicial approval for “foreign affairs” surveillances.

B. Rationales for the Foreign Affairs Exemption — the Balancing of Constitutional Powers, Responsibilities, and Rights

A variety of rationales have been advanced to support the recognition of an exemption from the warrant requirement for “foreign affairs” surveillances. Among them are the importance of speed, expertise, and great secrecy in the decision whether to place this kind of wiretap; the necessity for a free flow of intelligence data upon which the President can base informed judgments in the area of foreign affairs; and the potential for harm to the well-being of the entire country if an intelligence operation is compromised or stymied in the process of securing a warrant. As will be discussed below, these arguments may well be sufficiently strong to outweigh competing constitutional values when applied to an intelligence operation aimed at foreign agents or collaborators.

The broader becomes the range of domestic activities purportedly covered by the “foreign affairs” exemption, however, the deeper the inroads it makes on the Fourth Amendment values of privacy, political freedom, and judicial oversight of searches and seizures by the Government. Virtually every political action in this country has some international repercussions. Certainly all protests against this country’s foreign policy, as well as protests against the internal or foreign policy of another country (as in this case), would have to be included. Every group, to mention only one example, which actively protested this country’s involvement in the Vietnam war could have been subjected to a warrantless wiretap under the exemption proposed by the Government.

The constitutional waiver approved by the District Court in the instant case would cover all wiretaps connected with the President’s conduct of our foreign relations with any country. Little reflection is required to recognize that' this is an extremely broad exemption whose employment by the Executive might be subject to inordinate abuse.

The possibility that officials could abuse their prerogative in attempting to act under so vague a concept as the power to protect “domestic security” was one of the major factors in the Supreme Court’s decision to reject the Government’s appeal for a “domestic security” exemption in Keith. “History abundantly documents the tendency of Government — however benevolent and benign its motives — to view with suspicion those who most fervently dispute its policies.”45 “Related to the conduct of foreign relations” and “involving a foreign power” are also extremely malleable criteria. Their utilization as standards for permitting warrantless surveillance activities would pose not only grave Fourth Amendment problems but also would threaten important First Amendment values.

“Foreign affairs” might easily be substituted for “national security” in the following quote from Keith:

National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech.46

Keith was not a case in which the defendants had engaged in protected First Amendment activity. They were charged with a conspiracy to destroy *702government property. In the instant case, some JDL protest activity was constitutionally protected and some was not. (Not unexpectedly, the Soviet Union reacted adversely to both lawful and unlawful demonstrations of JDL disaffection with Soviet policy.) Notwithstanding the illegality of the defendants’ actions, the Supreme Court observed in Keith : “Given the difficulty of defining the domestic security interest [or, it is submitted, “foreign affairs” interest], the danger of abuse in acting to protect that interest becomes apparent.”47

To be sure, the Court’s concern was that “[t]he price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.”48 It would appear, however, that in the Court’s estimation the knowledge that the Executive could engage in wiretapping without prior judicial approval simply by invoking “domestic security” would deter lawful as well as unlawful dissent. The same reasoning is applicable in the instant case. Energetic protest activity often includes an element which is arguably unlawful. Public knowledge that the Executive has plenary power to authorize wiretaps without judicial scrutiny when the Government suspects an individual or group is engaged in unlawful activity might well limit the general exercise of vigorous dissent to an administration’s conduct of our foreign affairs.

In Keith the Government attempted to counter the weight of Fourth and First Amendment arguments against a “domestic security” exception with the same kinds of reasons advanced in the instant case — speed, secrecy, expertise, and the need to avoid any impediment to the President’s discharge of his constitutional duty.49 The Supreme Court found none of these rationales of sufficient persuasiveness (or importance) to justify waiving minimal Fourth Amendment requirements. There would appear to be only three factors in this case which might alter the constitutional balance established in Keith.

The first is that the President enjoys somewhat greater autonomy in the field of foreign affairs than in the exercise of his domestic duties. As was explained at the beginning of Part II, however, the certainty of the President’s authority in this field cannot ipso facto justify the abrogation of constitutionally protected individual rights.

The second possible distinguishing feature is that the determination whether probable cause exists for a surveillance requires greater expertise where foreign affairs are involved than when domestic security is in question. That the reasonableness of a request for a “foreign affairs” wiretap is something so far beyond the ken of federal judges as to render them incompetent to make such a determination is at best a dubious proposition. “If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.”50 Moreover, the Government does not contest that an evaluation by a judge must be made when, as here, there is an attempt to prosecute someone who is overheard. If a judge is able to make a proper evaluation after a wiretap is conducted, it is certainly questionable why his judgment is less sound before it is installed. Finally, judges are fully aware of the special expertise the Executive department possesses in this area. If there is error in a court’s decision, it is likely to stem from excessive reliance on that expertise rather than too little respect for the Executive’s judgment.

The third factor which might distinguish the result reached in Keith from that which should obtain here is the added danger to the welfare of the country which the involvement of a foreign power brings to a criminal case. It is this *703factor which necessitates speed and great secrecy in determining whether surveillance is necessary. However persuasive this argument might be when the resources of another nation are covertly directed — through the medium of an enemy agent or domestic collaborator — toward the overthrow of the government, it is not convincing when the threat is the more generalized and uncertain one of a “deterioration in our foreign relations.” Certainly the subversive activities of a purely domestic organization intent on destroying government institutions present a much stronger case for secrecy and speed of surveillance than the protest activities of a group which adversely affect the conduct of our foreign relations. The Supreme Court nevertheless was unable to find in Keith that the danger of compromising or hindering a domestic intelligence operation was sufficiently great to justify impinging on basic Fourth Amendment values by eliminating the warrant requirement. The constitutional balance established in that case would appear to control the instant case as well.

Important support for the position that any “foreign affairs” exemption which would apply to all surveillances “related to the conduct of foreign relations” is simply too broad is found in past Executive claims of constitutional privilege in this area. When President Roosevelt asserted the power to authorize warrantless surveillances on “national security” grounds, he limited that authorization to “communications of persons suspected of subversive activities against the Government of the United States, including suspected spies.”51 Subsequent Presidential claims expanded the term “national security” to include “cases vitally affecting the domestic security,” but none argued a blanket authority to engage in warrantless surveillances in all cases touching upon the conduct of foreign affairs. Moreover, although there is very general language in some cases about the inherent authority of the President to gather foreign intelligence, the only case in which the object of a warrantless “foreign affairs” surveillance has been revealed involved an alien agent of another country acting in collaboration with a citizen of this country.52 This authority, while arguing against the extremely broad constitutional waiver requested by the Government in the instant case, naturally raises the question whether a narrow exemption, limited to survéillances on those working on behalf of a foreign government and against this country, might not be constitutionally acceptable.

C. Collaborators and Non-Collaborators with a Foreign Power

The Supreme Court in Keith viewed the difference between domestic and foreign groups, for the purpose of judging whether a case was one involving domestic or foreign aspects of national security, as a question of the degree of collaboration between a group and agents or agencies of a foreign power.53 This distinction reflects the primary concern of the Executive and the Judiciary, since the concept of special Presidential prerogatives in the field of foreign intelligence gathering was first introduced, not to hamper the President’s ability to safeguard this country against the subversive activities of foreign agents and fifth columnists. The constitutional validity of a “foreign affairs” exemption limited to surveillances on this narrow class of especially dangerous criminals is ■ supported by the fact that it minimizes *704conflict with First and Fourth Amendment values.54

To sum up the importance and relevance of the distinction between collaborators and non-collaborators to the issue of the existence of (or limits on) the Executive’s power to conduct electronic surveillance without prior judicial approval:

First: the process of balancing the interests, which support recognition of an exemption from the warrant requirement for all “foreign affairs” wiretaps, against the inroads such blanket recognition would make on the constitutionally protected rights of groups and individuals, demonstrates that, while there may be a case for an exemption where collaborators are concerned, the argument falls flat when, as in this case, non-collaborators are the targets.

1. The importance of absolute secrecy, speed, and informality in making the decision to conduct a surveillance reaches its zenith where collaborators are involved. Usually operating in stealth, they can only be detected by great stealth. The operations of non-collaborators (e. g., the Jewish Defense League), on the other hand, are likely to be notorious. This is not to say that a successful wiretap does not need to be surreptitious; but it is hard to justify any more secrecy or less formality in this situation than is required to obtain judicial approval for an ordinary criminal wiretap, when the whole world is aware of the surveillance target’s activities.

2. The difficulty of finding a judge with sufficient background to make an intelligent decision on the question whether a surveillance is justified is arguably greater where collaboration with a foreign power is suspected. If the point be made that a judge with insufficient experience would probably grant the Executive’s application automatically, then what protection is afforded anyone by useless formality at the sacrifice of speed and security? Where “foreign affairs” are involved, but only because of the connection of non-collaborators with a foreign power, there should be no inordinately greater difficulty in presenting the matter to a judge than in the usual criminal case. The instant case is a good example of non-collaborationist activity which involves a foreign nation, but nevertheless is readily comprehensible by a judge.

3. There are no First Amendment problems of dissuading the legitimate political dissent of collaborators with a foreign power, since they rarely have as their purpose the injection of their position into “the marketplace of ideas.”55 In contrast, almost invariably non-collaborators depend heavily on their First Amendment freedom in order to propagandize their cause; that freedom would necessarily be inhibited by the existence of a broad Executive power to conduct surveillances under a loose “foreign affairs” exemption.

4. The simple domestic/foreign distinction — i. e., Executive surveillance of purely domestic activity restricted by the requirement of prior judicial approval, but no restriction where foreign affairs are concerned — is too easily subject to abuse.56 Almost every important political action in this country has some international repercussions. Granting the Executive’s constitutional powers and expertise in foreign affairs, his authority would seem justifiably unrestricted only when dealing with collaborators with a foreign power, not with non-collabora*705tors such as those involved in the instant case.

Second: Executive and judicial precedents supporting the existence of an extraordinary Executive surveillance authority within the ambit of the President’s “foreign affairs” power usually have spoken in terms, or in the context, of espionage and sabotage by alien or domestic agents of a foreign country. Reference has rarely, if ever, been made to using that special power against non-collaborators.

1. Executive claims of privilege in the area of foreign affairs wiretapping have generally relied upon the importance of monitoring “persons suspected of subversive activities against the Government of the United States, including suspected spies.”57

2. All cases which have upheld the exemption have involved, to our best knowledge, either foreign agents or U.S. citizens charged with collaboration. The Supreme Court’s opinion in Keith, when eschewing a ruling on the foreign affairs aspects of “national security,” spoke in terms of the activities of “foreign powers or their agents.”58

3. The Supreme Court in the same ease viewed the difference between domestic and foreign groups, for the purpose of-judging whether a case involved domestic or foreign aspects of national security, as based upon the degree of collaboration between a group and “agencies of foreign powers.”59

D. The Spectrum of Executive Electronic Surveillance Authority

My analysis thus brings me to a spectrum of Executive electronic surveillance authority composed of four parts, as compared with the Government’s tripartite model. At one end are all wiretaps in ordinary criminal cases, in which officials must adhere to the strict requirements of Title III. Next are domestic security surveillances, as in Keith, which the Supreme Court declined to make subject to the strict procedures of Title III, but which the Court held nevertheless are subject to the constitutional requirements of “prior judicial approval.” Third, if the above analysis is accepted, are surveillances, such as that in the instant case, whose primary purpose is the protection of our relations with another country. This type of “foreign affairs” surveillance might differ from a domestic security surveillance in the kind of probable cause showing required to justify a wiretap;60 nevertheless,, it, too, must have prior judicial approval. Fourth, and finally, at the opposite end of the spectrum from Title III surveillances, are surveillances directed at foreign agents and collaborators. To my mind this type of surveillance presents the only circumstance where the balance of constitutional powers, responsibilities, and rights may justify the Executive in dispensing with prior judicial approval. That case is not before us; and neither this opinion nor the plurality’s attempts to decide the question. Even if a “foreign affairs” exemption, limited to collaborators and foreign agents, does find constitutional support, it has no application to the warrantless surveillance practiced by the Executive here.

Thus, on the particular facts of this case, I join in the plurality’s determination that the defendants were in violation of the Fourth Amendment when they placed wiretaps on the phones of the JDL without obtaining prior judicial approval. Had the plurality further taken the logical position that the remedy for this constitutional violation was a damage action under the Constitution, I would have no substantive quarrel with their opinion. Instead, however, they have chosen to draw all surveillances subject to Fourth Amendment requirements — whether involving domestic security, foreign affairs, or ordinary crimi*706nal activity' — within the ambit of a regulatory statute which is geared entirely toward auditory searches for evidence to support the prosecution of specifically enumerated crimes. Recognizing the anomaly of their position — which finds no support in the legislative history of Title III or in Supreme Court case law— the plurality determine to expunge from the regulatory scheme those provisions which are in most glaring conflict with the informational character of domestic security and foreign affairs surveillances. For the reasons detailed in Part I of this opinion, I strongly dissent from this legislative excursion by the plurality and the concomitant application to this case of the statutory damages provision of Title III.

The outline of this opinion is as follows:

I. The Statutory Claim
A. The Scope of a “Foreign Affairs” Surveillance
B. The Meaning of the Section 2511(3) Disclaimer
II. The Constitutional Claim
A. The “Foreign Affairs” Exemption — Inner Distinctions and Limitations
B. Rationales for the Foreign Affairs Exemption — the Balancing of Constitutional Powers, Responsibilities, and Rights
C. Collaborators and Non-Collaborators with a Foreign Power
D. The Spectrum of Executive Electronic Surveillance Authority

. See Bivens v. Six Unknown Named Agents 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

. 18 U.S.C. § 2520 (1970).

. 18 U.S.C. §§ 2510-2520 (1970).

. 18 U.S.C. § 2511(3) (1970).

. Report on S.917, Omnibus Crime Control and Safe Streets Act of 1968, S.Rep.No.1097, 90th Cong., 2d Sess. (1968), U.S.Code Cong. & Admin.News, 1968, p. 2112.

. Id. at 94, U.S.Code Cong. & Admin.News, 1968, p. 2182.

. 18 U.S.C. § 2511(3) (1970).

. S.Rep.No.1097, 90th Cong., 2d Sess., at 94 (1968), U.S.Code Cong. & Admin.News, 1968, p. 2182.

. Ibid.

. Def.Exh. B-3(ll), If H.

. Judge McGowan, concurring in the result reached by Judge Wright’s plurality opinion, takes the contrary position that law enforcement, not intelligence gathering, was the primary purpose of the Government’s surveillance of the JDL. He finds support for his view in a State Department memorandum which notes, first, that the activities of the JDL are having “a negative effect on the conduct of our relations with the U.S.S.R.”; second, that the JDL’s bombing of the Amtorg office “raises the possibility of Soviet retaliation against U.S. Embassy personnel in Moscow”; and, third, that “the JDL is an organization of legitimate concern to Federal law-enforcement authorities.” This memorandum was sent to the FBI on 30 June 1970 with a cover letter stating that “the Department will be most grateful for anything you can do to assist us with this problem.” (Exhibit B — 1(2).)

After receiving this request, that the FBI should have asked permission from the Attorney General to tap the telephone of the JDL for the purpose of obtaining advance knowledge of the organization’s activities, rather than for the purpose of gathering evidence for criminal prosecutions, is hardly surprising. The principal concern of the State Department was not to enforce the criminal laws against the JDL — the primary responsibility for protecting U.N. personnel from criminal acts is vested in New York state authorities, not the FBI — but to minimize the disruptive effect of the group’s activities on our relations with the Soviet Union.

To be sure, the State Department was cheered when it learned that a federal grand jury was investigating the activities of the JDL. In a letter quoted by Judge McGowan, the Department expressed to the Attorney General its hope that the indictment and prosecution of JDL members under federal statutes would follow. (Opinion of Judge McGowan, supra, 170 U.S.App.D.C. -, 516 F.2d 682.) It is clear from the remainder of the letter, however, that the Department’s desire was not so much that wrongdoers be brought to justice as that “the deterrent éffect of such prosecutions upon violent anti-Soviet acts will measurably improve the ability of the United States to deal with the Soviet Union on substantive foreign policy issues . . ..” (Exhibit B-l(5).) In short, the State Department viewed criminal prosecutions as one potentially effective means of achieving its overriding goal of maintaining good relations with the Soviet Union.

Certainly the FBI did not misread the Department’s general request for assistance *692when the Bureau determined that another means of minimizing the adverse impact of the JDL’s activities on our foreign relations would be to learn of the organization’s plans in advance so as to forewarn the objects of its demonstrations and avert the possibility of violence. Contrary to Judge McGowan’s conclusion, this preventive action did not have as its purpose the gathering of evidence of specific crimes, or even the prevention of crime per se. These tasks were the duty primarily of local law enforcement authorities. Rather, the FBI’s monitoring activity was intended to keep the Bureau and the State Department informed of every movement, criminal and noncriminal, of the JDL which might exacerbate our position vis-a-vis the Soviet Union.

. 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

. Judge McGowan, in his concurring opinion, agrees that

the plain meaning of the language of Keith seems to me to be that there are certain national security surveillances to which the statute [Title III] was not intended to apply, and that the surveillance then before the Court was one of them.

(Opinion of Judge McGowan, supra, 170 U.S. App.D.C. at p. -, 516 F.2d at p. 686.) Nevertheless, he finds two reasons why Title Ill’s procedures, and provision for damages, are applicable in the instant case.

The first reason rests upon the proposition that wherever a particular statute can be utilized, it must be. (Id. 170 U.S.App.D.C. at -n.7, 516 F.2d at 683-684 n.7.) Despite the fact that the primary purpose of a particular surveillance may be informational, if there is any prosecutorial element in it (that is, any expectation of discovering criminal violations), then the procedures laid down in Title III must be followed. The difficulty with this position is immediately apparent. The vast majority of activities whose surveillance is exempted from the provisions of Title III by section 2511(3) will perforce involve some element of criminality. If the courts were to require Title III procedures to be followed in every case where there is evidence of a criminal violation, the scope of section 2511(3) would be so drastically reduced as to render the section virtually meaningless.

Keith itself is a good illustration. The defendants were indicted for a conspiracy to destroy government property. (407 U.S. at 299, 92 S.Ct. 2125.) Despite the fact that it may have been possible for the FBI to proceed according to the provisions of Title III, however, the Supreme Court indicated a much more flexible procedure would suffice. (407 U.S. at 322, 92 S.Ct. 2125.) It appears contradictory, on the one hand, for Judge McGowan to accept that Title III was not intended to apply in Keith and, on the other, to argue that the Government must proceed according to the statute’s provisions whenever a criminal violation is suspected.

. The second reason Judge McGowan gives for applying Title Ill’s procedures in this case is that the section 2511(3) disclaimer was only intended to apply when government surveillances are directed against agents of, or collaborators with, a foreign power. (Opinion of Judge McGowan, 170 U.S.App.D.C. at-, 516 F.2d at 683-684.) As I discuss in Part II infra, the collaborator/non-collaborator distinction may be useful when dealing with the scope of the President’s power to engage in electronic surveillance without prior judicial approval; but, I think the utility of the distinction breaks down when the issue is whether Title III procedures are mandated in a particular case.

me purpose of section 2511(3) is to recognize “a distinction between the administration of domestic criminal legislation . . and the conduct of foreign affairs.” (S.Rep.No. 1097, 90th Cong., 2d Sess. 94 (1968).) The foreign affairs power of the President is no less implicated when another country’s threat of “hostile acts” against this country is triggered by the activities of a non-collaborationist domestic group than when the threat comes from a collaborator or foreign agent. The question is not whether non-collaborators should be protected by the Fourth Amendment’s requirement of prior judicial approval. Both my opinion and that of the plurality make clear that they must be so protected. Rather, the question is whether the President’s need for information to guide his efforts in the field of foreign affairs should be subject to the strict procedural requirements — geared to prosecutorial surveillances — of Title III. I think he should not be so hampered, and the language of section 2511(3) bears out this *693view. (See text accompanying notes 8 and 9 supra.) Note that section 2511(3) not- only recognizes the President’s authority to protect the country against “hostile acts of a foreign power” (emphasized by Judge McGowan) but also “to obtain foreign intelligence information deemed essential to the security of the United States.” (See text accompanying note 4 supra.)

. 407 U.S. at 306, 92 S.Ct. at 2131.

. Ibid.

. See generally United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948).

. 407 U.S. at 303, 92 S.Ct. at 2130.

. S.Rep.No.1097, 90th Cong., 2d Sess., at 94 (1968), U.S.Code Cong. & Admin.News, 1968, p. 2182.

. Plurality Opinion, 170 U.S.App.D.C. at---, 516 F.2d at 661-663.

. Id. 170 U.S.App.D.C. at---, 516 F.2d

. Id. at n.232.

. 407 U.S. at 304-06, 92 S.Ct. at 2130-2131.

. Id. at 322-24, 92 S.Ct. 2125.

. Id. at 322, 92 S.Ct. at 2139.

. Ibid.

. Id. at 323-24, 92 S.Ct. at 2140.

. See text accompanying note 18 supra.

. Plurality Opinion at n.240.

. 407 U.S. at 315, 92 S.Ct. at 2135.

. S.Rep.No.1097, 90th Cong., 2d Sess., at 94 (1968) U.S.Code Cong. & Admin.News, 1968, p. 2182.

. Ibid.

. Plurality Opinion, 170 U.S.App.D.C. at-, 516 F.2d at 669.

. Id., 170 U.S.App.D.C. at -, 516 F.2d at 668-671.

. Id., 170 U.S.App.D.C. at -, 516 F.2d at 668-670.

. 407 U.S. at 306, 92 S.Ct. at 2131.

. Judge McGowan, agreeing with my assessment of the court plurality’s position, points out that sections 2516 and 2518(l)(b)(i) are not the only provisions of Title III which are totally inapposite in the context of an informational surveillance. Sections 2518(l)(b)(iv), 2518(3)(a), (b) & (d), 2518(4)(c), and 2519(l)(e) would also have to be ignored if Judge Wright’s view were to nrevail. (See opinion of Judge McGowan, 170 U.S.App.D.C. at-, 516 F.2d at-.)

. Plurality Opinion, 170 U.S.App.D.C. at-, 516 F.2d at 662-664.

. 407 U.S. at 308, 92 S.Ct. at 2132.

. 114 Cong.Rec. at 308.

. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972) (on remand from the Supreme Court).

Since I would hold as a matter of law that there was no violation of Title III in this case, I do not reach the question whether it is possible judicially to imply a “good faith” defense under the statute. See Plurality Opinion, 170 U.S.App.D.C. at-, 516 F.2d at 671-673 and Opinion of Chief Judge Bazelon.

. 407 U.S. at 309, 92 S.Ct. at 3132.

. Id. at 308, 92 S.Ct. at 2132.

. See United States v. Abel, 2 Cir., 258 F.2d 485, aff’d, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

. See United States v. Rosenberg, 195 F.2d 583 (2d Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952).

. 407 U.S. at 314, 92 S.Ct. at 2135.

. Id. at 313, 92 S.Ct. at 2135.

. Id. at 314, 92 S.Ct. at 2135.

. Ibid.

. Id. at 318-21, 92 S.Ct. 2125.

. Id. at 320, 92 S.Ct. at 2138.

. Memorandum from President Roosevelt to Attorney General Jackson, 21 May 1940, reproduced in United States v. United States District Court, 444 F.2d 651, 669-70 (6th Cir. 1971), aff’d, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (subsequent authorizations of Presidents Truman and Johnson also reproduced).

. United States v. Butenko, 494 F.2d 593 (3 Cir. 1974), cert. denied, Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974).

. 407 U.S. at 309 n.8, 92 S.Ct. 2125.

. It is important to make clear that the distinction drawn here is not between surveillances of aliens, on the one hand, and United States citizens, on the other. Aliens and citizens alike are protected by the First and Fourth Amendments, at least within the borders of this country. See Colyer v. Skeffington, 265 F. 17 (D.Mass.1920); Ex parte Jackson, 263 F. 110 (D.Mont.1920). More important, domestic agents of a foreign power are equally, if not more, harmful to the nation’s welfare than their foreign counterparts. Thus, the suggested exemption would draw no distinction between alien and citizen agents.

. For an exception, see G. S. Viereck, Spreading Germs of Hate (1930).

. Witness the recent use of “foreign affairs” as a justification for the Watergate break-in.

. See note 51 supra.

. 407 U.S. at 322, 92 S.Ct. 2125.

. Id. at 309 n.8, 92 S.Ct. 2125.

. See United States v. Smith, 321 F.Supp. 424, 428-29 (C.D.Cal.1971).