Full opinion text
Circuit Judge J. SKELLY WRIGHT, in an opinion joined by Circuit Judges LEYENTHAL and SPOTTSWOOD W. ROBINSON, III, and by Chief Judge BAZELON except as to Part III — B, concerning which he filed a dissenting opinion, concluded that: 1. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that a federal cause of action for damages exists to remedy violations of the Fourth Amendment. The warrant-less surveillance conducted by appellees constitutes such a Fourth Amendment violation. Infra, 170 U.S.App.D.C. at ---, 516 F.2d at 611-654. (a) Although Presidents since the time of Franklin Roosevelt have authorized warrantless national security surveillance, the practice does not justify dispensing with the warrant requirement. Since the practice developed at a time when there were no Fourth Amendment restrictions on non-trespassory surveillance, we cannot view it as an affirmative declaration by prior Presidents that their surveillance activities were immune from constitutional strictures. In any event, an unconstitutional practice, no matter how inveterate, cannot be condoned by the judiciary. Infra, 170 U.S. App.D.C. at---, 516 F.2d at 616— 620. (b) Prior Supreme Court decisions concerning the broad plenary powers of the President in the field of foreign af-. fairs do not predetermine the proper accommodation of presidential powers with the mandate of the Fourth Amendment and do not require that the President’s national security surveillance orders be either exempted from any judicial review or exempted from prior judicial scrutiny. Although these cases indicate that the President’s power to obtain foreign intelligence information is vast, they do not suggest that he is immune from constitutional requirements; the procedural question of how the President may constitutionally exercise his powers remains even though those substantive powers are found to exist. Infra., 170 U.S.App.D.C. at---, 516 F.2d at 616-627. (c) Both appellees in this case and some other courts facing the question of warrantless national security surveillance have asserted that, since “reasonableness” is the ultimate test under the Fourth Amendment, the reasonableness of such warrantless surveillance is to be determined on the circumstances of the particular case. However, this approach is inconsistent with the methodology the Supreme Court has consistently followed when addressing Fourth Amendment problems: absent special circumstances, a warrantless search is per se unlawful. As the Keith decision indicates, a court must ask more than whether there is a legitimate presidential need to conduct electronic surveillance; it must also ask whether a warrant, which places a neutral and detached magistrate or judge between investigative or prosecutorial officials of the Executive Branch and the First and Fourth Amendment rights of our citizens, should be obtained before doing so. This requires an analysis of whether a warrant would frustrate the legitimate governmental goal in the category of cases of which this is but one example. Infra, 170 U.S.App.D.C. at ---, 516 F.2d at 627-633. (d) In balancing individual rights and governmental needs in the intelligence gathering area, it is clear that pri- or judicial review can prevent Executive abuses and safeguard not only the Fourth Amendment right of privacy, but also the First Amendment values of freedom of speech and association. Thus prior judicial review should be required unless it will frustrate the legitimate goals of surveillance. A search of prior cases upholding the President’s asserted right to conduct warrantless foreign security surveillance reveals almost a total lack of reasons for not requiring a warrant. Nevertheless, possible factors that might dictate abrogation of the warrant requirement include (1) lack of judicial competence to deal with foreign affairs data; (2) danger of security leaks which might endanger the lives of informants and agents and which might seriously harm national security; (3) the fact that such surveillance is not being used for criminal prosecutions, but only for “strategic” intelligence gathering; (4) the possibility that the delay involved in the warrant procedure might result in substantial harm to national security; and (5) the fact that the administrative burden on the courts or the Executive Branch which would result from such a requirement would be enormous. Our analysis of these factors indicates that none is persuasive as a reason for abrogating the warrant procedure when the President seeks to obtain information that affects foreign affairs. Infra, 170 U.S.App.D.C. at---, 516 F.2d at 633-652. (e) Although the above analysis suggests that, except for situations where exigent circumstances are present, there should be no category of surveillance for which the President need not obtain a warrant, our holding today does not sweep that broadly. We only hold in this case that, even where foreign affairs are involved, the President must obtain a warrant when the domestic organization which is the subject of the surveillance is neither an agent of nor acting in collaboration with the foreign power posing the national security threat. This holding is particularly reinforced by the rationale and approach of the Keith decision. Infra, 170 U.S.App.D.C. at---, 516 F.2d at 650-655. (f) Since judges will be forced to decide whether “probable cause” to install national security wiretaps exists, we offer some guidance on the factors which judges should consider in issuing warrants. These include the importance of the information sought by the Government, the availability of less intrusive means for obtaining the information, and the degree to which surveillance of a particular scope and duration will infringe individual rights. Infra, 170 U.S. App.D.C. at---, 516 F.2d at 655— 659. 2. Congress intended that the procedures and remedies of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 would apply to all surveillance which must, under the Constitution, be conducted pursuant to a warrant procedure. Since we' hold that a warrant is constitutionally required under the circumstances of this case, appellants are entitled to the liquidated damages recovery provided in that Act, unless appellees on remand establish an affirmative defense of good faith. Infra, 170 U.S.App.D.C. at---, 516 F.2<f at 659-673. (a) The dictum in Keith concerning possible future congressional legislation in the national security area is consistent with our holding that Congress intended Title III to be as comprehensive as possible, covering all surveillance which the Constitution dictates must be conducted only after securing judicial approval. This statutory construction is supported by the language of Title III, by its legislative history, by- the fate of proposed wiretap legislation over the past 20 years, and by various policy considerations. Infra, 170 U.S.App.D.C. at ---, 516 F.2d at 659-670. (b) Appellees may on remand, however, avoid damages on both constitutional and statutory grounds if they can establish (1) that they had a subjective good faith belief that it was constitutional to install warrantless wiretaps under the circumstances of this case, and (2) that this belief was itself reasonable. Infra, 170 U.S.App.D.C. at---, 516 F.2d at 670-673.
Circuit Judge McGOWAN, concurring in the judgment of the court only on statutory grounds, concluded that in order to escape the statute’s general prohibition of warrantless electronic surveillance, 18 U.S.C. § 2511(1) (1970), the instant wiretaps must fall within the statutory exemption for “measures . necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power.” Id. § 2511 (3). Since, in Judge McGowan’s view, such measures do not include surveillances directed, as these were, at citizens having no affinity with a foreign power whose hostile acts are feared, he would hold the instant surveillances illegal on that ground alone, without reference to the Constitution. Nathan Lewin, Washington, D. C., with whom Herbert J. Miller, Jr., and Martin D. Minsker, Washington, D. C., were on the brief, for appellants. Edward S. Christenbury, Atty., Dept, of Justice, with whom Henry E. Petersen, Asst. Atty. Gen., and Kevin T. Maroney, Deputy Asst. Atty. Gen., were on the brief, for appellees. Circuit Judge ROBB concurs in the judgment of the court on statutory grounds without reaching the constitutional questions.
Circuit Judge WILKEY, concurring in the judgment of the court only on constitutional grounds and dissenting on statutory grounds, concluded that: Although not regulated by or in violation of the provisions of Title III, the warrantless surveillance of the JDL nevertheless violated the minimal procedural requirements of the Constitution; therefore, the appellants have a cause of action against the appellees for damages under the Fourth Amendment. (a) The question whether the surveillance should be exempted from the Fourth Amendment’s warrant requirement can only be answered by balancing the exigencies of intelligence gathering in this case against the constitutional values placed on prior judicial approval. (b) The waiver approved by the District Court is an extremely broad exemption whose employment by the Executive might be subject to inordinate abuse. It poses a grave threat to the Fourth Amendment values of privacy, political freedom, and judicial oversight of governmental searches and seizures which are not outweighed in this case by the need for speed, secrecy, expertise, and Presidential freedom of action in foreign intelligence operations. (c) The arguments for a “foreign affairs” exemption from the warrant requirement are strongest where foreign agents and collaborators with a foreign power are involved. In addition, an exemption limited to this narrow class of criminals minimizes conflict with First and Fourth Amendment values. (d) If a “foreign affairs” exemption exists, therefore, it applies only to surveillances involving foreign agents and collaborators. It has no application to the warrantless wiretaps employed by the Executive here. Circuit Judge MacKINNON concurs in part, dissents in part, and files a separate statement. Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc. Circuit Judge J. SKELLY WRIGHT announced the judgment of the court and delivered an opinion in which Circuit Judges LEVENTHAL and ROBINSON concurred and in which Chief Judge BAZELON concurred except as to Part III— B, concerning which he filed an opinion dissenting in part. Circuit Judges McGOWAN and ROBB filed opinions concurring in the judgment. Circuit Judge WILKEY filed an opinion concurring in part and dissenting in part. Circuit Judge MacKINNON filed a dissenting opinion. J. SKELLY WRIGHT, Circuit Judge: Over the past several years there has been increasing anxiety and increasing litigation concerning actions which the Executive Branch of our Government has undertaken under the rubric of “national security.” Undoubtedly the President, our Chief Executive and Commander-in-Chief of our Armed Forces, is imbued by the Constitution with vast and indispensable powers for dealing with the vital problems generated by our relations with foreign powers, including the duty to protect this country from foreign aggression or subversion. The very existence of such tremendous power, however, renders it susceptible to abuse and endangers those fundamental personal liberties which the Government was instituted to secure for its citizens and whose exercise elevates the nation to a stature worthy of defense. Thus, although the attempt to claim Executive prerogatives or infringe liberty in the name of security and order may be motivated by the highest of ideals, the judiciary must remain vigilantly prepared to fulfill its own responsibility to channel Executive action within constitutional bounds. The present case embodies this problem in a particularly acute form, since we are faced with the delicate and difficult task of reconciling the President’s asserted power to obtain foreign intelligence information through use of electronic surveillance with the citizen’s cherished right to maintain his privacy and associations inviolate against unreasonable governmental intrusion. Moreover, we must determine whether Congress, in enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970), intended to affect this relationship by providing a remedy for illegal Executive surveillance. I Plaintiffs-appellants, 16 individuals who were members of the Jewish Defense League (JDL) during the period covered by this action, sought damages from John Mitchell, then Attorney General of the United States, and nine special agents or employees of the Federal Bureau of Investigation for electronic surveillance overhearings of plaintiffs’ telephone conversations which transpired during the month of October 1970 and from January 5 through June 30, 1971. The overhearings were alleged to violate plaintiffs’ rights under both Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970), and the Fourth Amendment. The instant action was filed shortly after pretrial proceedings in the consolidated criminal cases United States v. Bieber, No. 71-CR-479 (E.D.N.Y.), and United States v. Joffe, No. 71-CR-480 (E.D.N.Y.), revealed that the Justice Department had installed wiretaps on the telephones of JDL’s New York headquarters without prior judicial approval, and had overheard conversations of certain defendants who were about to stand trial. At a subsequent hearing before Judge Weinstein, the Government prosecutor admitted that six telephone lines had been involved in the taps and that there were “volumes and volumes” of transcripts of intercepted communications. Plaintiffs-appellants herein allege that their conversations were illegally monitored by this surveillance during calls they made to or from, or calls they received on or from, those telephones. Although defendants-appellees have since admitted that each of the named plaintiffs had in fact been overheard during conversations over the telephones in question, they claim that this surveillance did not abridge plaintiffs’ statutory or constitutional rights. The primary ground for this position was explicated in an affidavit submitted by former Attorney General Mitchell, in which he stated: The surveillance of this telephone installation was authorized by the President of the United States, acting through the Attorney General in the exercise of his authority relating to the nation’s foreign affairs and was deemed essential to protect this nation and its citizens against hostile acts of a foreign power and to obtain foreign intelligence information deemed essential to the security of the United States * * *. Judge Pratt, on cross-motions for summary judgment in the District Court, sustained this assertion and granted defendants’ motion, finding as a matter of fact that the Attorney General had authorized the wiretaps “after a determination was made by him that the activities of the JDL were obviously detrimental to the continued peaceful relations between the United States and the Soviet Union and threatened the President’s ability and constitutional authority to conduct the foreign relations of this country,” Zweibon v. Mitchell, D.D.C., 363 F.Supp. 936, 942 (1973), and holding as a matter of law that “[n]o prior authorization from a Court is necessary where, as in this ease, electronic surveillances relate to the foreign aspects of our national security.” Id. at 943. Judge Pratt then concluded that when there is a “clear threat to this country’s foreign relations, it is the executive and not the judiciary, which should determine whether or not an electronic surveillance requires prior judicial authorization,” id., and that the Attorney General’s actions were “reasonable within the meaning of the Fourth Amendment and were therefore lawful.” Id. at 944. Judge Pratt’s findings that these surveillances were motivated by foreign threats to the national security, and were a reasonable response in light of those threats, are premised on the actions and statements of JDL members and the reactions they provoked on the part of officials of the Soviet Union. Although the JDL was originally organized to achieve various domestic goals, its focus eventually shifted to the international arena, where it was primarily directed at opposing the Soviet government’s restrictive emigration policies as they related to Soviet Jewry. In furtherance of these ends, JDL members engaged in a broad spectrum of activities directed against Soviet officials and installations in the United States. These activities ranged from purely peaceful demonstrations through acts of violence, including the bombing of Amtorg and Intourist-Aeroflot offices in New York City. Soviet officials vigorously and continuously protested these activities, for which they held the United States Government responsible. In the wake of these protests the Attorney General, fearing the possibility of international embarrassment or Soviet retaliation against American citizens living in Moscow, initially gave his approval to an FBI request for authorization to install wiretaps on JDL headquarters during the month of October 1970 on the oecasion of the 25th session of the General Assembly of the United Nations. Although there was no evidence that this surveillance had achieved its purported aim of “provid[ing] advance knowledge of any activities of JDL causing international embarrassment to this country,” the Attorney General approved a second FBI request for authority to install a wiretap beginning in early January 1971. This second request for a wiretap on JDL headquarters, which was approved to last for a period of 90 days, was based solely on the fact that JDL demonstrations, many of which were “marked by violence,” were targeted against Soviet installations in this country and were the subject of official Soviet protests. Once again the surveillance was “expected to provide advance knowledge of activities of the [JDL] directed against anti-Jewish diplomatic establishments, which could create situations of international embarrassment to the United States.” This wiretap was extended for another 90-day period, based on the FBI’s unsubstantiated assertion that “the authorized surveillance has continued to reveal details of plans by the * * * JDL to continue its program of harassment of Soviet and Arab bloc officials * * *. In each instance the [wiretap] installation furnished otherwise unobtainable information, well in advance of public statements by the JDL, thereby allowing for adequate countermeasures to be taken by appropriate police and security forces.” Apparently despite any intelligence information so gathered, JDL activities continued in full force during the period of the surveillance; indeed, the surveillance failed to generate information that would have prevented the bombing of Amtorg offices on April 22, 1971, which was reportedly executed by JDL members.38 After 208 days, the wiretap installation was finally terminated, on June , 1971. During this period, neither Mr. Mitchell nor other officials of the Attorney General’s office reviewed the information obtained from or the necessity for the taps, and Mr. Mitchell was unaware that the taps continued for more than a month after criminal indictments were handed down against several individuals (five of whom are plaintiffs in this case) whose conversations, including those with their attorney, were overhead in violation of Justice Department regulations. II In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that a federal cause of action exists to remedy violations of the Fourth Amendment and that damages are recoverable upon proof that injuries resulted from the violation. There is still some doubt, however, as to whether all warrantless wiretapping constitutes such a violation. In 1967, the Supreme Court first ruled that warrantless electronic surveillance conducted through non-trespassory methods is an unreasonable search and seizure within the meaning of the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But in a footnote, see id. at 358 n.23, 88 S.Ct. at 515, the Court explicitly cautioned: Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case. Although three Justices expressed their views on this subject in concurring opinions, the issue was not squarely presented to the Court until United States v. United States District Court [Keith], 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), narrowed the scope of the possible exception to the warrant requirement. In a carefully reasoned opinion, Mr. Justice Powell, writing for six members of the Court held that no exception exists for surveillance justified solely on the basis of domestic threats to the national security. Despite the fact that the Court expressed no opinion as to the result that would be required if foreign powers were involved in the threat to the national security, some courts have subsequently held that such an exception to the warrant requirement in fact exists. We have serious doubts as to the methodology employed by those courts, and we therefore undertake to analyze the issues with which we are presented in a manner more faithful to the spirit and rationale of Keith. For although this case is a civil damage suit, it squarely poses the problem of the meaning and scope of the Keith decision and the validity and viability of any distinction between surveillance justified on the basis of foreign, as opposed to domestic, threats to the national security. Although we believe that an analysis of the policies implicated by foreign security surveillance indicates that, absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional, our holding need not sweep that broadly. Instead, we . hold today only that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of nor acting in collaboration with a foreign power, even if the surveillance is installed under presidential directive in the name of foreign intelligence gathering for protection of the national security. We do not reach this conclusion lightly or without sensitivity to the import or the controversiality of the problem of national security wiretapping. But the Constitution compels us to do no less. In any event, our decision does not limit in any way the ability of the President to conduct legitimate national security wiretaps, since we do not address the substantive scope of that power or the exact standards upon which warrants should issue. Rather, we merely decide that whatever the legitimate scope of that power, and whatever the standard which must be met to justify the intrusion of a wiretap, the decision as to whether the scope has been exceeded or the standard has been met is to be made by a neutral and disinterested magistrate or judge rather than by an Executive official engaged in investigatory or prosecutorial duties, at least in situations where the subject of the surveillance is a domestic organization that is not the agent of or acting in collaboration with a foreign power. A. Before engaging in our Fourth Amendment analysis, we must dispose of an argument, based on alleged precedent, that has been implicitly advanced by several courts as well as by appellees in this case. This argument in effect asserts that prior presidential practice and several Supreme Court holdings establish the President’s preeminent power over the conduct of foreign affairs, and that this power in turn establishes the inherent authority of the President to engage in warrantless national security surveillances as a necessary concomitant of his responsibilities as Commander-in-Chief of the Armed Forces and Chief Executive of the nation. To be sure, the fact that the Keith Court found the President’s powers with respect to domestic affairs insufficient to justify an exception to the warrant requirement when the domestic aspects of national security are involved, yet refused to specify what procedures would be entailed if the national security threat had its origin with foreign powers, indicates that any difference in re-suit must turn on the President’s peculiar powers in the field of foreign affairs. However, the precedents of Executive practice and judicial decisions merely substantiate the existence of those powers and legitimate the authority of the President to obtain information necessary to protect the national security from foreign aggression; they do not preordain the procedures with which the President must comply in exercising that authority. We will therefore discuss these precedents to elaborate why they are not themselves conclusive of the procedural question; in a later section of this opinion we will scrutinize them to determine whether they are based on any policies which would be frustrated if a warrant requirement were to apply to the category of foreign security surveillances. 1. Admittedly, Presidents since Franklin Roosevelt have authorized their Attorneys General to approve investigations “to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States.” However, this practice has never received Supreme Court approval, and there can be no doubt that an unconstitutional practice, no matter how inveterate, cannot be condoned by the judiciary. Indeed, the Supreme Court in Keith merely treated the similarly long-standing Executive practice of conducting surveillance “in cases vitally affecting the domestic security” as indicative of the unchallenged Executive power to obtain intelligence information, not as determinative of the proper procedures to be followed in so doing. Even more important, this Executive practice must be considered in its historical context, which illustrates why the 30-year policy of presidentially directed electronic surveillance has no substantial bearing on whether the practice of warrantless surveillance is now constitutional. To appreciate this problem, one must remember the Supreme Court’s unfortunate decision in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Over vigorous dissents, including the renowned Brandéis celebration of personal privacy, the Olmstead Court held that, absent an actual physical trespass, there is no search within the meaning of the Fourth Amendment. Thus, from 1928 until 1967, there was simply no dispute that the Fourth Amendment was inapplicable to non-trespassory electronic surveillance; it was for this reason that warrants were not required. However, shortly after the Olmstead decision, Congress enacted Section 605 of the Federal Communications Act of 1934, which provided that no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. Section 605 was interpreted to prohibit the introduction into evidence of both the contents of conversations overheard on wiretaps installed by law enforcement officials, see Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), and the fruits of such overhearings, see Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Although various bills were subsequently introduced to avoid the effects of these decisions, they never received congressional approval. Nevertheless, the Justice Department construed the Nardone decisions not to prohibit wiretapping itself. As one Attorney General explained: The question soon arose as to whether mere interception by federal agents of messages was forbidden by Section 605. The Attorney General [Jackson] at that time took the view that what the law prohibited was both interception and divulgence, and that mere report of the intercepted message to public officials by FBI or other federal agents did not constitute divulgence. Attorney General Jackson announced in 1940 that the Justice Department would discontinue wiretapping; he reversed that position, however, two months later, after receiving a confidential memorandum from President Roosevelt, the first such presidential directive in the corpus of Executive precedents cited as authorizing warrantless wiretapping. In effect, the memorandum was actually a reaction to the statutory construction decision of Nardone, not an assertion of presidential immunity from constitutional constraints. Accepting the Nardone holding that evidence obtained through wiretaps could not be introduced in criminal prosecutions, President Roosevelt nevertheless did not accept the view that the statute prohibited the wiretapping itself, since he discounted the possibility that any dictum in Nardone was intended “to apply to grave matters involving the defense of the nation.” The Roosevelt memorandum clearly related solely to “wiretapping” which, unlike “bugging,” was generally accomplished without a physical trespass. Thus neither his memorandum nor those of Presidents Truman and Johnson actually discussed the warrant requirement, since Olmstead had rendered the Fourth Amendment inapposite where non-trespassory surveillance was involved. Indeed, presumably because bugging was generally of a trespassory nature and thus subject to Fourth Amendment strictures even before Katz, President Johnson’s pre-Katz memorandum on national security surveillance recognized that “[utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem [than wiretapping], which raises substantial and unresolved questions of Constitutional interpretation.” We need not recount how this practice of presidentially authorized electronic surveillance has grown from a highly circumscribed and infrequently employed device under President Roosevelt to its extensive scope under Presidents Truman and Johnson and its magnitude as an explicitly asserted constitutional exception under Presidents Nixon and Ford. Nor need we maintain that if the Supreme Court in Olmstead had held the Fourth Amendment applicable to non-trespassory surveillance, prior Presidents would not have claimed a constitutional exception from the warrant requirement. We recount the background of this Executive practice only to refute the argument that it should be viewed as an affirmative statement by prior Presidents that they were not subject to the warrant procedure of the Fourth Amendment when they acted for national security purposes. Indeed, there are no similar memoranda from these Presidents advocating unwarranted physical trespasses, to which the Fourth Amendment would have applied. To be sure, the Executive Branch and its law enforcement agencies had become accustomed to conducting non-trespassory electronic surveillance unhampered by prior judicial scrutiny; it was therefore expedient to argue for a constitutional exception once Katz eliminated the trespassory/non-trespassory distinction in Fourth Amendment doctrine. However, even if we ignore the fact that expediency is no soil in which to root a constitutional doctrine, we must still stress the fact that support for a constitutional exception simply cannot be derived from Executive actions that solely concerned statutory matters and whose evolution was based on considerations other than the Fourth Amendment and the proper means of effectuating its guarantees. 2. The second type of precedential authority relied on to justify warrantless national security surveillances is comprised of Supreme Court decisions not implicating the Fourth Amendment but relating to the President’s broad powers over the conduct of foreign affairs. A very brief survey of these cases will reveal that they may be roughly divided into three overlapping subclasses: (1) cases finding that our “political” relations with foreign governments are nonjusticiable; (2) cases recognizing that the President has certain “inherent” powers in the field of foreign affairs which are not dependent upon congressional authorization; and (3) cases recognizing an evidentiary privilege shielding information pertaining to military or diplomatic secrets from disclosure in open court. It will be seen that despite broad dicta in some of these cases, none stands for the proposition that the Executive Branch is immune from constitutional strictures in the conduct of the nation’s foreign affairs. Indeed, after discussing these cases we will scrutinize a separate line of cases which has clearly subjected the Executive Branch to the normal system of constitutional checks and balances, and which has clearly indicated the limited ability of the President to justify actions taken in the United States on the basis of conditions abroad or relations with foreign powers. The paradigmatic case of the first subclass of precedents concerning the President’s conduct of foreign affairs is United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937), which appellees cite for the broad proposition that “the conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this political power [is] not subject to judicial inquiry or decision.” Id. at 328, 57 S.Ct. at 760, quoted in brief for appellees at 23. See also Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918); United States v. Pink, 315 U.S. 203, 222-223, 229, 62 S.Ct. 552, 86 L.Ed. 796 (1942). This language should not, however, be divorced from its factual predicates. Belmont, Pink, and Oetjen were all basically “act of state” cases, and the sole presidential decision that was given conclusive force concerned who was to be considered the lawful sovereign of the foreign power. Once the legitimate sovereign is determined, the act of state doctrine precludes his acts from being reexamined by the courts of another sovereign state. In Oetjen, which only involved the “action, in Mexico, of the legitimate Mexican government when dealing with a Mexican citizen,” 246 U.S. at 303, 38 S.Ct. at 311, this doctrine disposed of the case. However, in Belmont and Pink, which involved an Executive agreement accepting the assignment to the United States of Russia’s claims against property nationalized pursuant to a decree by the Russian government, objections were raised that the nationalization violated our Constitution. Although acknowledging the Executive’s power to negotiate and finalize the agreement, the Court nevertheless addressed the constitutional validity of the Soviet expropriation. In Belmont the Court held that the Constitution has no extraterritorial effect, except with respect to United States citizens, 301 U.S. at 332, 57 S.Ct. 758, and in Pink the Court held that the Fifth Amendment does not bar the federal government from giving priority to its own claims and those of its nationals as opposed to those of foreign creditors. 315 U.S. at 228, 62 S.Ct. 552. Thus viewed, the language quoted from these cases can be seen to be of limited value when a court is faced with the constitutional validity of actions undertaken domestically, even if in furtherance of the President’s foreign affairs powers. The paradigmatic case of the second subclass of precedents concerning the President’s conduct of foreign affairs is United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), which held that, because they are of different origin and nature, the federal government’s domestic and foreign powers are of a very different scope: The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. * * * Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. * * * * * * [H]e, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Id. at 315-320, 57 S.Ct. at 219, quoted in United States v. Butenko, 3 Cir., 494 F.2d 593, 602 n.36, cert. denied, sub nom. Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 43 L.Ed.2d 121 (1974). Although Curtiss-Wright certainly supports the contention that the President’s powers are not limited to those specifically enumerated in the Constitution, it is in-apposite to the question of how those powers are to be reconciled with the mandate of the Fourth Amendment. For as the Curtiss-Wright Court itself recognized, “like every other governmental power, [the President’s plenary power over foreign relations] must be exercised in subordination to the applicable provisions of the Constitition.” 299 U.S. at 320, 57 S.Ct. at 221 (emphasis added). Moreover, it must be remembered that although the Court recognized a core of inherent presidential power not dependent upon legislative authorization, see id., the question actually presented in Curtiss-Wright was the constitutionality of a congressional delegation of power to the President, that is, whether a congressional resolution granting the President authority to prohibit arms shipments to an area of armed conflict vested him with an excess of discretion. Indeed, the dicta as to the need for secrecy of information were uttered in the context of the reasonableness of “congressional legislation which is to be made effective through negotiation and inquiry.” Id. Finally, unlike the domestic searches and seizures conducted in this case, the legislation in CurtissWright was “intended to affect a situation in a foreign territory,” id. at 321, 57 S.Ct. at 221; Curtiss-Wright, like all other “presidential power” cases, simply did not address the manner in which the President’s foreign affairs powers are to be accommodated with the Fourth Amendment’s dictates. Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948), similarly recognized that the President possesses in his own right certain powers with respect to foreign affairs. In construing the judicial review provision of the Civil Aeronautics Act, 49 U.S.C. § 646, not to authorize review of those orders, which are subject to approval by the President, concerning applications by citizen carriers to engage in overseas and foreign air transportation, Mr. Justice Jackson, writing for a sharply divided Court, penned an extensive passage which has often been cited or quoted as supporting the President’s power to engage in warrantless national security surveillance. See United States v. Brown, 5 Cir., 484 F.2d 418, 426 (1973); United States v. Clay, 5 Cir., 430 F.2d 165, 171 (1970) (alternative holding), reversed on other grounds, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971); United States v. Smith, C.D.Cal., 321 F.Supp. 424, 426 (1971) (dictum); United States v. Butenko, D.N.J., 318 F.Supp. 66, 72 (1970), affirmed, 3 Cir., 494 F.2d 593, cert. denied, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974). Mr. Justice Jackson proclaimed: The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. * S{! * 333 U.S. at 111, 68 S.Ct. at 436. It is important to recognize that this declaration was made in the context of determining congressional intent for purposes of construing the judicial review provisions of the Civil Aeronautics Act; indeed, the actual decision in Waterman, based as it was on statutory construction, has been considerably eroded since 1948. We thus do not find the above dicta conclusive as totthe justiciability of presidential actions when a constitutional provision is at issue. Even Justice Jackson did not hesitate, only four years after authoring the Waterman opinion, to hold President Truman’s seizure of domestic steel mills unconstitutional, despite its claimed necessity for preservation of national security during wartime. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (concurring opinion). Dismissing Waterman as an example of the “wide definition of presidential powers under statutory authorization,” see id. at 636 n.2, 72 S.Ct. at 871, he warned: [N]o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture. Id. at 642, 72 S.Ct. at 873. Since the national security claim in Youngstown was based on armed conflict, the direst action involving foreign affairs, it is doubtful that the Justice would have approved such an expansion of powers over internal affairs, which are inevitably involved in every wiretap situation, merely upon the President’s assertion that his “conduct” of foreign policy is affected. Similarly, we see no reason to take the Waterman dicta as a Supreme Court statement that any issue that touches foreign affairs is to be immunized from judicial review, particularly when there are strong countervailing constitutional interests that merit judicial protection. Indeed, the Supreme Court has itself recognized that [t]here are sweeping statements to the effect that all questions touching foreign relations are political questions. * * * Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of'the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and the possible consequences of judicial action. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). As the Keith Court realized, the decision whether a citizen’s privacy may constitutionally be invaded is not a “political” question similar to such questions as who should receive an overseas air route or who is the lawful sovereign of a foreign country; rather, it is a question of providing a bulwark against Executive excess, a task which the Fourth Amendment deliberately'allocated to the neutral officials of the judiciary. Moreover, as we will elaborate extensively below, we do not understand why a court cannot sit in camera to receive enough information to determine the legitimacy of Executive requests for authorization to conduct electronic surveillance. No one seriously contends that some degree of in camera judicial review of the same information would be impermissible in the context of a post hoc criminal prosecution based on evidence derived from such surveillance, and the Supreme Court has itself authorized in camera determinations of the validity of asserted Executive privilege with respect to evidence which might reveal military or diplomatic secrets. More particularly, the Supreme Court has already directed lower courts to assess the legality under the Fourth Amendment of foreign security wiretaps, and has given no indication whatever that such a task is nonjusticiable. Finally, to the extent Executive determinations in the area of foreign relations merit judicial deference or are based on confidential or sensitive information, the judiciary could fashion the standard of probable cause to account for any lack of expertise on its part and to accommodate the need to maintain such confidences as the identity of Government agents and the reasons underlying an Executive decision to pursue a particular foreign policy. 'The paradigmatic case of the third and final subclass of precedents concerning the President’s conduct of foreign affairs is found in dicta in the recent decision of United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), which reaffirmed the evidentiary privilege of the Executive Branch with respect to production of documents whose publication could endanger military or diplomatic secrets. See also United States v. Reynolds, 345 U.S. 1, 7-11, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Nixon v. Sirica, 159 U.S.App.D.C. 58, 71, 79, 487 F.2d 700, 713, 721 (1973). Although quoting the Waterman statement concerning judicial nullification of Executive action based on confidential information, see 418 U.S. at 710, 94 S.Ct. at 3107-3110, and although it was abundantly clear that, if the legitimacy of an asserted privilege could be determined without an in camera inspection, such an inspection should not be ordered, the Nixon Court reiterated the longstanding judicial position that the applicability of any privilege is undeniably a question for the courts to decide: Since this Court has consistently exercised the power to construe and delineate claims [of the Legislative or Executive Branches] arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers. 418 U.S. at 704, 94 S.Ct. at 3105. The role of the judiciary and the propriety of judicial scrutiny of documents allegedly pertaining to national security were also evident in the procedure mandated by the Court: When the subpoenaed material is delivered to the District Judge in camera questions may arise as to the excising of parts [on the basis of military or diplomatic privilege] and it lies within the discretion of that court to seek the aid of the Special Prosecutor and the President’s counsel for in camera consideration of the validity of particular excisions, whether the basis of excision is relevancy or admissibility or [sic] under such cases as Reynolds, supra, or Waterman Steamship, supra. 418 U.S. at 715 n.21, 94 S.Ct. at 3111 n.21. This brief survey of the types of cases which have acknowledged, either in holding or in dictum, the vast scope of Executive power in the domain of foreign relations should clarify any misconception that they render that power exempt from judicial review or immune to constitutional limitations. Indeed, there is another series of cases which graphically establishes the limits on presidential power when national security is used as a talisman to invoke extraordinary powers in the conduct of domestic affairs. Probably the most celebrated decision holding executive action unconstitutional is Youngstown Sheet & Tube Co. v. Sawyer, supra, previously referred to with respect to Mr. Justice Jackson’s concurrence, which found that President Truman’s order directing the Secretary of Commerce to seize and operate most domestic steel mills, in order to avert a nationwide steel strike that the President believed would threaten the national defense, was without statutory or constitutional basis. The case posed the question of inherent Executive power in stark form, since the Korean conflict exacerbated the potential consequences of any steel strike: The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. 343 U.S. at 583, 72 S.Ct. at 865. Although the President asserted that he had inherent power, under the aggregate of his constitutional powers as Commander-in-Chief of the Armed Forces and as the nation’s Chief Executive, to avert the “national catastrophe” which would result from such a work stoppage, see id. at 582, 584, 72 S.Ct. 863, a majority of the Court did not hesitate to rule that, under the circumstances of the case, the exercise of his asserted power was unconstitutional. And although Youngstown involved the question of the Executive’s usurpation of legislative power without congressional authorization, an analogous problem is presented when the President attempts to usurp the judiciary’s traditional and constitutional role of giving prior approval to searches and seizures that need not be immediately undertaken due to exigent circumstances. A plethora of other cases have similarly recognized constitutional limits on the President’s powers as Commander-in-Chief or as the nation’s spokesman in the arena of foreign affairs. The Supreme Court has indicated that “even the war power does not remove constitutional limitations safeguarding essential liberties,” Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 (1934) (dictum), and that, despite allegations that a newspaper’s “publication of [the contents of a classified study recounting the history of American decision-making on Vietnam policy] should be restrained because it would gravely prejudice the defense interests of the United States,” see United States v. Washington Post Co., 144 U.S.App.D.C. 326, 327, 446 F.2d 1327, 1328 (en banc) (per curiam), affirmed, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the Government had not overcome the First Amendment’s presumption against imposition of prior restraints. See New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam); cf. United States v. Robel, 389 U.S. 258, 263, 88 S.Ct. 419, 420, 19 L.Ed.2d 508 (1967) (“the phrase ‘war power’ cannot be invoked as a talismatic incantation to support any exercise of congressional power which can be brought within its ambit”). The Court has also refused to allow the Executive to ignore constitutional strictures during wartime. See, e. g., Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688 (1946) (substitution of military law for civilian process unconstitutional despite allegation that Hawaii was in danger of attack and martial law was necessary); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121, 18 L.Ed. 281 (1866) (President cannot impose martial law on civilians, thereby suspending the Sixth Amendment right to jury trial, “where the courts are open and their process unobstructed”); Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134, 14 L.Ed. 75 (1852) (compensation under the Fifth Amendment would be required even if private property were lawfully destroyed by military officers to keep it from falling into enemy hands); cf, e. g., Reid v. Covert, 354 U.S. 1, 5, 17, 77 S.Ct. 1222, 1230, 1 L.Ed.2d 1148 (1957) (plurality opinion) (military trial of civilian dependents abroad unconstitutional, since the “prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined”); Ex parte Merryman, 17 Fed. Cas. No. 9487, p. 144 (C.C.Md.1861) (Taney, C. J.) (President cannot suspend the writ of habeas corpus). But cf. Hirabayashi v. United States, 320 U.S. 81, 92, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) (constitutional for Congress and Executive, acting together, to order internment of United States citizens of Japanese ancestry as an emergency war measure). In light of these cases, which unqualifiedly subject the President to constitutional limitations, we must undertake an analysis of whether the Fourth Amendment mandates that the President must in fact submit his national security wiretapping installations to prior judicial approval. B. The Fourth Amendment guarantees one of our “indispensable freedoms,” the right to be free from unreasonable searches and seizures. Its dictates are simple: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In its brief to this court arguing that warrantless electronic surveillance conducted pursuant to the President’s foreign affairs powers does not violate the strictures of this Amendment, the Government in effect continues to advance a theory of the Fourth Amendment that the Supreme Court has consistently discredited: that “[t]he relevant test is not whether it [was] reasonable to procure a search warrant, but whether the search was reasonable.” We are advised that we must focus our attention on “the circumstances of this case,” brief for appellees at 8; that “the circumstances to be weighed by this Court in considering the reasonableness of the conduct of the Executive challenged herein, are the actions of the Jewish Defense League, directed toward Soviet officials in this country, which were of such a character as to materially effect [sic] the relations between this country and the Soviet Union, and which, through the threat of reciprocal action, endangered the lives of American citizens in that country,” id. at 25-26; that we need not consider the implications of warrantless surveillance on the exercise of First Amendment rights, since “the actions of the Jewish Defense League, which necessitated the surveillance of their organization, simply were not limited to the exercise of constitutionally protected speech and conduct,” id. at 27 (emphasis added); and that the reasonableness of warrantless wiretapping is somehow predetermined by the legitimate need of the Executive Branch to acquire information, see generally id. at 21-32. These are all erroneous contentions. Unfortunately, in their zeal to present a favorable facade of justifications for these surveillances, appellees have only superficially addressed the substantial questions concerning the relative merits and demerits of requiring the Government to proceed by way of the warrant procedure in obtaining necessary foreign intelligence information. Quoting Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), appellees correctly observe that the “ultimate standard set forth in the Fourth Amendment is reasonableness.” Brief for appellees at 25. However, they neglect to quote the immediately following sentence, which represents the proper approach to a Fourth Amendment problem: In construing this command [of reasonableness], there has been general agreement that “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara v. Municipal Court, 387 U.S. 523, 528-529 [87 S.Ct. 1727, 1731, 18 L.Ed.2d 930] (1967). See Coolidge v. New Hampshire, 403 U.S. 443, 454-455 [91 S.Ct. 2022, 29 L.Ed.2d 564] (1971). It is of course true, as appellees contend, that “the Fourth Amendment does not prohibit all warrantless searches and seizures.” However, the presumption has always been that a warrant should be obtained whenever practicable, and exceptions to the warrant requirement have been based on exigent or other circumstances where delay would frustrate legitimate police activity. Indeed, in Keith the Supreme Court recognized that these exceptions “are few in number and carefully delineated.” 407 U.S. at 318, 92 S.Ct. at 2137. Thus, although we do not “seriously doubt in this time of serious international insecurity and peril that thsre is an imperative necessity for obtaining foreign intelligence information, and we do not believe such gathering is forbidden by the Constitution,” brief for appellees at 29-30, quoting United States v. Clay, supra, 430 F.2d at 172, this is but the beginning, not the end, of our inquiry. The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant. * * * In assessing whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967) (emphasis added). In Keith, the Supreme Court reiterated this methodology: If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it. 407 U.S. at 315, 92 S.Ct. at 2135 (emphasis added). Similarly, here we must determine whether a warrant requirement will better protect Fourth Amendment rights when foreign intelligence gathering is involved, and whether such a requirement would unduly fetter the legitimate functioning of the Government. For unless there are valid reasons for abrogating the warrant procedure when foreign relations are implicated, the President must comply with that traditional procedure. We cannot, as appellees and some courts have done, simply ignore that threshold question in determining the reasonableness of searches and seizures carried out in furtherance of the President’s responsibilities for protecting the national security from foreign dangers. C. To admit that ther