409 U.S. 1013
Anthony Joseph RUSSO, Jr., and Daniel Ellsberg
William Matthew BYRNE, Jr., etc.
Supreme Court of the United States
November 13, 1972
On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.
I regret that the Court does not take this occasion to lay down some further ground rules for the conduct of criminal cases involving electronic surveillance, in the sensitive area, which involves both the Fourth and the Sixth Amendments.
In Alderman v. United States, 394 U.S. 165 , we laid down rules governing the district courts where there had been electronic surveillance of the defendant in a criminal case or where in other surveillance his words had been recorded. Alderman and its descendants made possible the conduct of criminal trials with fairness to all sides and with no disturbance to orderly proceedings.
The present case is one of several that have come across my desk this year involving not the surveillance of a [409 U.S. 1013 , 1014] defendant in a criminal case but the surveillance of his lawyer.
It is time, I think, that we hold that the confidences of the lawyer- client relationship remain inviolate. It is also time that we set forth the prescribed procedures in an Alderman type of opinion.
The problems where the lawyer is involved seem to me to be as critical as those where the defendant's privacy under the Fourth Amendment is violated. 1 The ruling [409 U.S. 1013 , 1015] which I made this last summer when I granted the stay in this case was based on the premise that the teaching of Alderman would fully apply to a case where the Sixth Amendment rights of a defendant were imperilled.
We held in United States v. United States District Court, 407 U.S. 297 , that electronic surveillance of internal security measures was not permissible on the basis of an order of the Attorney General, but only on judicial search warrants. We reserved decision 'with respect to activities of foreign powers or their agents.' Id., at 322. When the argument was held last summer on the stay order, the prosecution in oral presentation distinguished that case on the ground that it involved 'domestic' surveillance while the present one involved 'foreign' surveillance. The prosecution seemed reluctant to enlarge on that distinction, which led me to note in the opinion I filed granting the stay that we may be dealing only with a matter of semantics. The prosecution never submitted to me in camera the logs in question. I have now seen them and it appears that the electronic surveillance was of a telephone of a foreign national and that the intercepted conversations in this case had nothing to do 'with respect to activities of foreign persons or their agents,' the question we reserved in the previous case, 407 U.S., at 322 . As I understand it, the conversation was an inquiry by one of the counsel concerning wholly personal, social and commercial matters. It is not conceivable to me that this conversation is in the 'foreign' field in the sense the word is used in the statutes involved in the United States District Court case. No activity of any foreign 'agent' as even suggested. We should therefore take the case to resolve what immunity the Executive Branch has in setting up schemes of pervasive surveillance of foreign nationals that is unrelated to espionage. [409 U.S. 1013 , 1016] It is, however, said that the conversation is utterly irrelevant to the issues in the present case. How can we know? Only one immersed in building a case for the prosecution or constructing a defense can know whether an innocuous-appearing conversation would be a 'link' in a chain of evidence which in time would be necessary or convenient for either the prosecution or the defense. That is why I feel strongly that, as we held in Alderman v. United States, supra, the question of relevance must be submitted for adversary hearing before the trial judge. 2
I suspect that if that had been done here, the dispute that has delayed this trial for some months would have been quickly resolved. A grave injustice may or may not ride on the denial of certiorari today. My concern is [409 U.S. 1013 , 1017] not that, but the administration of the law. I use the word law in its largest sense-where the prosecution as well as the defense is required to live within the spirit and letter of the constitutional rules designed to keep Government off the backs of the people and to take no shortcuts because of public hysteria or political pressures.
That question concerning the applicability of the pretrial procedures laid out in Alderman to the protection of Sixth Amendment claims make this case a singularly appropriate occasion for laying down the ground rules that will apply in federal trials.
Mr. Justice BRENNAN also votes to grant the petition for certiorari.
And he added:
[ Footnote 2 ] In Alderman v. United States we read: