dissenting:
The majority concludes that the Federal Magistrates Act does not authorize district courts to refer electronic eavesdropping applications, made under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521 (Title III), to a United States magistrate judge. In effect, the majority asks “why” should the magistrate judges have this authority. Were Congress asked this question, and it is that body’s legislative purpose which purports to be our guide, its answer would be, I am persuaded, “why not?” While the issue presents a close question of statutory interpretation, clearly the statutory scheme, the genealogy of Title III amendments, and the legislative history of the Magistrates Act, Pub.L. No. 90-578, 82 Stat. 1107 (codified as amended at 18 U.S.C. §§ 3401-02; 28 U.S.C. §§ 631-39 (1988)), make plain the legislative aim to experiment in the broader use of magistrate judges in order to free Article III judges to perform their adjudicatory function. For reasons *939stated in a moment, I therefore respectfully dissent.
DISCUSSION
I
It is plain that Congress was deeply concerned about individual privacy rights as reflected in the debates leading up to the enactment of Title III in June 1968. Once Congress decided to authorize this intrusion through the use of a wiretap, the issue of privacy was resolved and the only question that remained was which judicial officers would have the authority to order a wiretap. It is our differing views on the answer to that question that prompts this dissent.
The statute, 18 U.S.C. § 2518(1), requires all wiretap applications to be submitted in writing to a “judge of competent jurisdiction,” defined as: “(a) a judge of a United States district court or a United States court of appeals; and (b) a. judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter [wiretap] orders.” 18 U.S.C. § 2510(9).
At the time § 2510(9) was drafted and enacted, Congress could not have included magistrates in the definition because magistrates did not then exist. Commissioners, who were not required to be lawyers, were their ostensible equivalent, and Congress did not deem commissioners capable of judiciously reviewing wiretap applications. See S.Rep. No. 1097, 90th Cong.2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2179. In fact, Congress did not believe commissioners were competent in the duties they were authorized to perform, such as review of applications for and authorization of search and arrest warrants. See H.R.Rep. No. 1629, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4252, 4255-56.
In response to this perceived inadequacy, four months after the passage of Title III, Congress enacted in October 1968 the Federal Magistrates Act. With the creation of the office of the United States magistrate, Congress abolished the office of commissioner. Magistrates were vested with all the authority previously held by commissioners, along with greatly expanded duties designed to “increase[ ] the overall efficiency of the Federal judiciary, while at the same time providing a higher standard of justice at the point where many individuals first come into contact with the courts.” H.R.Rep. No. 1629, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4252, 4257.
To address the deficiencies of the commissioners, Congress required, inter alia, magistrates to be members of the bar wherever possible. See 28 U.S.C. § 631(b)(1). This was prompted, in part, to insure “both the accused and the legal system of an independent determination of the question of probable cause.” Id. at 4256. Congress obviously could have modified § 2510(9) and expressly extended to magistrates the authority to authorize Title III wiretaps. Perhaps it was thought unnecessary in light of the Magistrates Act itself. No time need be spent speculating on this because in 1976 Congress made clear how it desired magistrates to be used in our judicial system.
II
As the legislative history of the 1976 amendments to the-Magistrates Act demonstrates, Congress was troubled by a series of court decisions that construed the Magistrate’s Act narrowly, stifling the greater use of magistrates by the district courts. See H.R.Rep. No. 1609, 94th Cong., 2d Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6166. The amendments accordingly reorganized the Magistrates Act in an attempt to clarify and further define the additional duties that may be assigned a magistrate. See Gomez v. United States, 490 U.S. 858, 867, 109 S.Ct. 2237, 2243, 104 L.Ed.2d 923 (1989). The revised § 636(b) reads, in relevant part, as follows:
(b)(1) Notwithstanding any provision of law to the contrary—
(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal ease, to dismiss or to *940permit maintenance of a class action, to dismiss for failure to state a claim upon ■ which relief can be granted, and to involuntarily dismiss an action.
(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States. (Emphasis added).
For purposes of the instant appeal, the two underlined clauses of § 636(b)- — the “pretrial matters” and the “additional duties” clause— are in my view the source of authority permitting a magistrate judge to review a wiretap application and authorize its issuance. Of equal importance is the statute’s lead-in sentence, that reads: “Notwithstanding any provision of law to the contrary — .” Its significance will be addressed first.
This sentence modifies the pretrial matters and additional duties clauses, and was included in order to resolve issues like that presented on this appeal, that is, whether a district judge may validly refer to a magistrate judge a task statutorily assigned to the district judge. As both the Senate and House Judiciary Committees explained:
The initial sentence of the revised section uses the phrase “notwithstanding any provision of law to the contrary — ”. This language is intended to overcome any problem which may be caused by the fact that scattered throughout the code are statutes which refer to “the judge” or “the court.” It is not feasible for the Congress to change each of these terms to read “the judge or a magistrate.” It is, therefore, intended that the permissible assignment of additional duties to a magistrate shall be governed by the revised section 636(b), “notwithstanding any provision of law” referring to “judge” or “court.”
S.Rep. No. 625, 94th Cong., 2d Sess. 7 (1976); H.R.Rep. No. 1609, 94th Cong., 2d Sess. 9 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6169. Given this plain expression of legislative purpose, the language of § 2510(9) is modified by § 636(b) so as to allow a district judge to refer a Title III application to a magistrate judge, provided the referral is encompassed by a specific authorization in the remainder of § 636(b).
Authority for such reference, it seems to me, falls within the orbit of either the pretrial matters clause or the additional duties clause because overall “[t]he Act is designed to relieve the district courts of certain subordinate duties that often distract district courts from more important matters.” Peretz v. United States, — U.S. -, 111 S.Ct. 2661, 2668, 115 L.Ed.2d 808 (1991); see also H.R.Rep. No. 94-1609, 94th Cong., 2d Sess. 7 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6167 (magistrate is to “assist the district judge in a variety of pretrial and preliminary matters thereby facilitating the ultimate and final exercise of the adjudicatory function at the trial of the case”); S.Rep. No. 92-1065, 92nd Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3350, 3351 (magistrates “render valuable assistance to the judges of the district courts, thereby freeing the time of those judges for the actual trial of cases”); H.R.Rep. No. 1629, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4252, 4255 (purpose of Act is “to cull from the ever-growing workload of the U.S. district courts matters that are more desirably performed by a lower tier of judicial officers”). The answer to the question now raised hinges therefore on whether the referral is a pretrial matter.
A. Pretrial Matters
Under the pretrial matters clause, a magistrate judge may be assigned to “hear and determine any pretrial matter.” 18 U.S.C. § 636(b)(1)(A). The district court retains the supervisory power to review the magistrate’s determination upon a showing that it “is clearly erroneous or contrary to law.” Id.; see also Gomez, 490 U.S. at 868, 109 S.Ct. at 2244. The amendment to the pretrial matters clause aimed to “clarify the broad authority to refer ‘any pretrial matter.’ ” H.R.Rep. No. 1609, 94th Cong., 2d Sess. 9 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6169. Only eight categories of dispositive pretrial motions, which might otherwise fall within the broad range of pretrial matters that could be referred, were excepted. See 18 U.S.C. § 636(b)(1)(A). *941Referral of a Title III wiretap application is not one of the enumerated exceptions. An ancient maxim of statutory interpretation seems particularly apt in such a circumstance: “Inclusio unius est exclusio alteri-us ” (The inclusion of one is the exclusion of another). Thus, it logically follows that since the eight exceptions to the pretrial matters clause did not include Title III wiretap referrals, it was not one of those categories of cases excepted from the broad range of cases that could properly be referred. See United States v. Diaz, 922 F.2d 998, 1002 (2d Cir.1990). Absent an affirmative reason to believe the 94th Congress had a different purpose, we should not judicially repeal the authorization to refer effectuated by Congress in 1968 and in 1976.
It is of more than slight significance that arrest warrants and search warrants were among those criminal pretrial matters enumerated in the Committee Report that set forth the types of pretrial matters included within this provision. See Gomez, 490 U.S. at 868, n. 16, 109 S.Ct. at 2244 n. 16; H.R.Rep. No. 1609, 94th Cong., 2d Sess. 7, 9 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6167, 6169. The ex parte nature of such individual applications is wholly analogous to the authorization for a wiretap. The notion that a wiretap is somehow more intrusive on personal privacy than an arrest or search warrant, and therefore only to be authorized by an Article III judge, blinks reality.
Concededly, those subject to an arrest or search warrant have notice at the time the intrusion occurs, while the wiretap is secret and without notice. But the knowledge imparted comes about because of the nature of the intrusion, not because there is a view that it constitutes a greater or lesser invasion of an individual’s right to privacy than does a wiretap. It might well be said that the execution of an arrest warrant not only deprives the individual of his or her right to privacy, it also denies to the individual the fundamental right to liberty, making that privacy intrusion greater than that imposed by a wiretap.
Yet, distinctions in Fourth Amendment jurisprudence based on differing levels of intrusiveness are disfavored by the Supreme Court. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987) (finding that “[a] search is a search,” regardless of its level of intrusiveness). This is because parsing out invasions of privacy tramples on the bright line the Court has attempted to establish in Fourth Amendment law. Hence, privacy cannot serve as a reason to deny a reference to a magistrate judge.
Moreover, and perhaps most importantly, applications for arrest and search warrants regularly call on magistrate judges to make the same probable cause determination that is at the heart of all Title III application decisions. See 18 U.S.C. § 2518(3)(a)(b)-(c). Affording district judges the right to delegate this authority to magistrate judges does not therefore construe the pretrial matters clause so as “to include responsibilities of far greater importance than the specified duties assigned to magistrates.” Peretz, — U.S. at -, 111 S.Ct. at 2667; see also Gomez, 490 U.S. at 864, 109 S.Ct. at 2241 (“Any additional duties performed pursuant to a general authorization in the statute reasonably should bear some relation to the specified duties.”). As such, there is no principled reason to infer that a wiretap application should not fall within the scope of the pretrial matters clause, while an arrest and search warrant should.
Congress, as noted, has ruled that arrest and search warrants are pretrial matters within the meaning of the clause. See Gomez, 490 U.S. at 868, n. 16, 109 S.Ct. at 2244 n. 16; H.R.Rep. No. 1609, 94th Cong., 2d Sess. 7, 9 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6167, 6169. The comparative analysis is not destroyed simply because these matters are also embraced by § 636(a)(1), which authorizes magistrates to assume all the duties previously held by commissioners. It bears repeating that commissioners were roundly criticized for their handling of those matters, which in itself was a major impetus for the creation of magistrates in the first place.
B. Additional Duties
Neither the Magistrates Act nor the cases interpreting the Act are altogether clear on the scope of the pretrial matters clause or *942the delineation between the pretrial matters and the additional duties clauses. Notwithstanding this murkiness, if the assignment of a Title III application is not a pretrial matter, then it must fall within the catch-all “additional duties” clause.
The government suggests that because no other judge has ever referred an application to a magistrate judge, Judge Korman should be mandamused not to refer such because in so doing he acts beyond his power. This contention, here upheld by my respected colleagues, thwarts Congress’ purpose when it included the additional duties clause in the 1976 amendments to the Magistrates Act. Congress sought to encourage experimentation so as to relieve district judges of time-consuming matters that do not require an Article III judge, and that distract such judges from the trying of cases. As the House Judiciary Committee explained:
This subsection enables the district courts to continue innovative experimenta-tions in the use of this judicial officer. At the same time, placing this authorization in an entirely separate subsection emphasizes that it is not restricted in any way by any other specific grant of authority to magistrates.
Under this subsection, the district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of “pretrial matters”.
If district judges are willing to experiment with the assignment to magistrates of other functions in aid of the business of the courts, there will be increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties, and a consequent benefit to both efficiency and the quality of justice in the Federal courts.
H.R.Rep. No. 1609, 94th Cong., 2d Sess. 12 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6172.
Judge Korman describes the burden review of Title III applications places on already overworked district courts.
Specifically, applications for Title III orders are accompanied by long and prolix affidavits. Review of these applications is often time consuming and the judicial officer’s task does not end with his or her signature on the order. After the wire interception is in place, there are periodic reports that require the judicial officer to monitor its progress. Moreover, where relevant conversations are seized, the judicial officer will usually be faced with equally lengthy and prolix renewal applications.
In re U.S. Attorney, 784 F.Supp. 1019, 1027 (E.D.N.Y.1992). Refusing to allow referral of these applications to magistrate judges who are intended to be an extra set of eyes, ears and hands and who already regularly perform similar tasks — many of which require the same determination of whether or not probable cause exists — only undermines the common goal of ensuring thorough monitoring of Title III applications.
The Supreme Court has stamped its imprimatur on a broad interpretation of the additional duties clause consistent with Congress’ plan.
The generality of the category of “additional duties” indicates that Congress intended to give federal judges significant leeway to experiment with possible improvements in the efficiency of the judicial process that had not already been tried or even foreseen. If Congress had intended strictly to limit these additional duties to functions considered in committee hearings or debates, presumably it would have included in the statute a bill of particulars rather than a broad residuary clause.
Peretz, — U.S. at -, 111 S.Ct. at 2667. The only limitations placed on this method of testing for improvements in judicial efficiency was expressed by the Court in Peretz. First, just as with a supplemental duty under the pretrial matters clause, the delegation of another duty pursuant to the “additional duties” clause cannot “include responsibilities of far greater importance than the specified duties assigned to magistrates.” Peretz, — U.S. at -, 111 S.Ct. at 2667. For the reasons discussed earlier, this limitation is not implicated.
*943Second, the delegated duty cannot be “inconsistent with the Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). This language cannot preclude a district court’s referral of a Title III application to a magistrate simply because of the language of 18 U.S.C. § 2510(9). Some affirmative indication of congressional purpose to prohibit use of a magistrate is required or some conflict with the Constitution must be shown. Any other reading of the statute would render the lead-in language of § 636(b), “notwithstanding any provision of law,” superfluous, contravening the norms of statutory construction. See Freytag v. Commissioner, — U.S. -, -, 111 S.Ct. 2631, 2638, 115 L.Ed.2d 764 (1991); Pennsylvania Public Welfare Dept. v. Davenport, 495 U.S. 552, 563, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990). For example, as the district court in the instant case points out, a jury verdict must under Fed.R.Crim.P. 31 be returned to “a judge.” But the legislative history of § 636(b) teaches that the additional duties clause permits magistrates to take a jury verdict “where the trial judge is unavailable.” See In re U.S. Attorney, 784 F.Supp. at 1026, n. 10. Hence, the word “judge” may not be read consistent with Congress’ scheme to exclude “magistrate judge,” absent some affirmative indication from the legislature.
Further, the interplay of the Supreme Court’s opinions in Peretz (allowing district courts to assign jury voir dire in a criminal case to magistrates when the parties consent) and Gomez (not allowing the foregoing where the parties did not consent) is particularly instructive respecting the scope of the additional duties clause. In Peretz, the Court said its holding in Gomez was predicated on concern that a magistrate’s conducting of jury voir dire without a defendant’s consent involved the potential deprivation of a significant constitutional right or privilege. See Peretz, — U.S. at -, 111 S.Ct. at 2666.
In the instant case, there are no constitutional concerns. The Fourth Amendment requires that the probable cause determination be made by a “neutral and detached magistrate.” See Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971). Obviously, the Fourth Amendment is not violated by the delegation of a wiretap application to a magistrate judge. Because the Court found no constitutional impairment in Peretz, it “therefore attached] far less importance ... to the fact that Congress did not focus on jury selection as a possible additional duty for magistrates.” — U.S. at -, 111 S.Ct. at 2667. As in Peretz, the absence here of any constitutional difficulty obviates the need to find unambiguous evidence of Congress’ design to include Title III applications among the additional duties a district court can refer to a magistrate. See id.
Ill
The government urges that analysis of Congress’ intent in this case be guided by the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 (codified as amended at 18 U.S.C. §§ 3121-3127 (1988)). This argument fails for several reasons.
To begin with, courts have an unflagging duty to read the laws of the United States in accord with what judges perceive is Congress’ scheme, not as judges might prefer. See INS v. Cardoza-Fonseca, 480 U.S. 421, 447, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981). Thus, we must be guided by what the 94th Congress had in mind when it enacted the 1976 amendments to the Magistrates Act and, to a lesser extent, the plan the 90th Congress had when it enacted Title III and, later in that same session, the original Magistrates Act. To say that the 94th Congress’ intent was that Title III applications should not be referred to magistrate judges pursuant to the Magistrates Act because the 99th Congress did not amend 18 U.S.C. §§ 2518(1) and 2510(9) is a weak reed to rely on when construing such comprehensive statutes. That is to say, “it is well settled that ‘the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.’ ” Russello v. United States, 464 U.S. 16, 26, 104 S.Ct. 296, 302, 78 L.Ed.2d 17 (1983) (quoting Jefferson County Pharma*944ceutical Ass’n v. Abbot Labs., 460 U.S. 150, 165 n. 27, 103 S.Ct. 1011, 1021 n. 27, 74 L.Ed.2d 882 (1983)).
Further, even assuming arguendo that we should in some sense be guided by what Congress did in 1986, its actions can reasonably be read so as not to conflict with the conclusion that Title III applications can be referred to a magistrate. The 1976 amendments and its inclusion of the “notwithstanding any law to the contrary” language was reflective in effect. Congress modified all those provisions that referred to “judge” or “court,” as it made perfectly plain. Included within that sweep was § 2510(9), as it defined judge of competent jurisdiction in all the then-existing provisions of Title III.
Next, when Congress later included the pen register provisions in 1981, it could not simply have said applications must be submitted to a “judge of competent jurisdiction” and referenced § 2510(9), as the government argues. Doing so would have rendered the pen register provisions ambiguous. The reflective 1976 amendments could not logically be read to modify later-enacted provisions of Title III. As a consequence, a new term had to be used with a different definitional section, which included magistrate. Insofar as § 2510(9) pertained to Title III wiretap applications, there was therefore no need to change or amend it; Congress had already changed it in 1976.
In disputing this proposition the government’s reliance on Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), is misplaced. Because the Attorney General’s power to delegate authority under 28 U.S.C. § 510 predated Title III, logically § 510 could not modify the unambiguous language of Title III so as to allow the Attorney General to delegate the power to authorize wiretap applications. In analyzing this issue the Supreme Court would focus on Title III because as the later-enacted statute, it was controlling. In contrast, the expanding provisions in both the 1976 amendments and the original Magistrates Act succeed Title III, and as such they control. Hence, the provisions of the 1981 Electronic Communications Act really shed no new light on the controlling statutes. It violates a cardinal rule of construction to view the pen register act of 1986 as repealing the Magistrates Act by implication.
Finally, the government declares that the contrast between the stringent controls placed on wiretap orders versus the much less onerous requirements for pen register authorizations indicates that Congress thought wiretap orders required the approval of a district judge. It is equally plausible to believe Congress recognized that the use of a pen register — compared to a wiretap — did not implicate the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
CONCLUSION
For the reasons stated, I vote to deny the petition for a writ of mandamus.