United States v. John William Butenko and Igor A. Ivanov. Appeal of Igor A. Ivanov

494 F.2d 593

• Court: Court of Appeals for the Third Circuit
• Decided: April 9, 1974
• Docket: 72-1741
• Status: Published

Opinions

OPINION OF THE COURT

ADAMS, Circuit Judge.

Among the more perplexing dilemmas faced by a democractic society is that of securing its territorial and institutional integrity, while at the same time, preserving intact the core of liberties essential to its existence as an association of truly free individuals.

The disposition of this appeal, which requires us to consider the relationship between the federal government’s need to accumulate information concerning activities within the United States of foreign powers and the people’s right of privacy as embodied in statute and the Fourth Amendment, represents, in effect, part of the federal judiciary’s attempt to strike a proper balance between these two compelling, albeit not easily reconciled, interests.

The present appeal is the most recent episode in this provocative and protracted litigation.¹ At a trial concluded on December 2, 1964, appellant Igor A. Iva-nov, a Soviet national, and John Buten-ko, an American by birth, were convicted of conspiring to violate the provisions of 18 U.S.C. § 794(a) and (c) and 18 U. S.C. § 951. These statutes, in essence, prohibit the transmission or communication to a foreign government of material or information relating to the national defense, and forbid a person from acting as a foreign agent absent prior notification to the Secretary of State. In a previous appeal, Ivanov and Butenko contended that the evidence offered by the government, which tended to implicate them in an. attempt to purloin highly sensitive information concerning the Strategic Air Command, was insufficient to support the averments in the indictments and, hence, their convictions could not stand. This Court agreed with Ivanov’s contention with respect to his conviction for violating § 951, but otherwise affirmed the judgment of the district court.²

Ivanov and Butenko then sought cer-tiorari in the Supreme Court. While their petitions were pending, the government voluntarily revealed that it had overheard, by means of electronic surveillance, conversations of Ivanov and of Butenko. The Supreme Court thereupon granted certiorari, limited to questions of standing and the government’s obligation to disclose the records of wiretaps determined to be illegal. In addition, the Court consolidated appeals of Ivanov and Butenko with another case involving similar issues.³ After oral argument, the Supreme Court held that records of illegal surveillance must be disclosed to Ivanov and Butenko, and remanded the cases to the district court for

A hearing, findings, and conclusions (1) on the question of whether with respect to any petitioner there was electronic surveillance which violated his Fourth Amendment rights, and (2) if there was such surveillance with respect to any petitioner, on the nature and relevance to his conviction of any conversation which may have been overheard through that surveillance.⁴

On remand, the district court was presented with requests for disclosure of the records of two sets of interceptions. Pursuant to the Supreme Court's directive, the district court, after conducting a hearing, found that information contained in the first set of interceptions, conceded to be illegal by the government, had not tainted the convictions of Iva-nov or Butenko.^{5 6}After examining the records of a second set of interceptions in camera, the district court held that the electronic surveillance producing these records did not violate § 605 nor contravene the Fourth Amendment.⁸ The district court, therefore, declined to order the government to disclose to Iva-nov and his counsel the records of the second set of interceptions or to conduct further proceedings with respect thereto.⁷ Accordingly, the district court directed that new judgments of conviction be entered.

Ivanov challenged the new judgment of conviction as to him. He asserted that the loss or destruction of some of the records dealing with the first set of interceptions prevented the government from sustaining its burden of demonstrating that his conviction was not tainted by these interceptions and may have deprived him of exculpatory evidence. Additionally, Ivanov contended that the district court erred in failing to require disclosure to him and his counsel of the records of the second set of interceptions, which he claimed violated § 605 of the Communications Act of 1934, or, if the Court found them to be permissible under § 605, his Fourth Amendment rights.

A panel of this Court, in an opinion filed June 21, 1973, unanimously declined to reverse the district court’s finding of no taint as to the first set of interceptions. However, the panel concluded, by a 2-1 vote, that the second set of interceptions fell within the parameters of § 605 and that, therefore, the divulgence of the contents of that set of taps, for the purpose of trial, was illegal. Consquently, the panel remanded to the district court for disclosure to Iva-nov and his counsel of the records of the second set of interceptions and for an evidentiary hearing to determine whether they tainted his conviction.

The government petitioned the Court in banc for a rehearing of that portion of the panel’s decision ordering disclosure and an evidentiary hearing dealing with the second set of surveillances. Ivanov filed a petition for rehearing, conditioned on the government’s obtaining rehearing, contending that the panel was incorrect in concluding that the government had produced all the records previously ordered disclosed relating to the first set of interceptions. The full Court granted the government’s petition for rehearing, but denied that of Ivanov.

Thus, the principal question before the Court in banc is whether it is sufficient that the records of the second set of interceptions be disclosed to the district court in camera, or whether the government must also disclose to Ivanov and his counsel the records of this set of interceptions.

I. THE DISCLOSURE REQUIREMENT

In Alderman v. United States,⁸ the Supreme Court held that the government must disclose to Ivanov and the other defendants all records of illegal surveil-lances, without a prior in camera review by the trial judge, for the purpose of determining if the records contain material relevant to the government’s case. The Supreme Court concluded that once the interceptions are ascertained to be illegal, “the task [of determining taint] is too complex, and the margin of error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government’s case.”⁹

The Supreme Court made clear in Taglianetti v. United States¹⁰ that the necessity of disclosure, in cases not involving illegal surveillance, depended upon the likelihood that accurate determinations of the particular factual or legal issues in dispute were otherwise unobtainable. “Nothing in [Alderman, Ivanov, and Butenko] . . . requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance.” ¹¹ (Emphasis added) Apart from ascertaining whether evidence derived from illegal surveillances tainted a conviction, it remains within the trial judge’s discretion to require or not to require disclosure of records of surveillances to facilitate resolution of questions surrounding electronic surveillance.¹²

Thus, if we are to require disclosure of the records of the second set of interceptions, we must conclude either (1) that the electronic surveillances producing such records were illegal or (2) that the trial judge abused his discretion in refusing disclosure.

In dealing with the former considerations — assessing the legality of the government’s activities with regard to the second group of surveillances, we must first decide whether § 605 prohibits the surveillances at issue. If we should decide that the prohibitions of § 605 do not cover these surveillances, we must then proceed to determine whether Iva-nov’s Fourth Amendment rights have been transgressed.¹³ Lastly, if we should hold that this set of surveillances were not illegal, we must, in accordance with the instructions of the Supreme Court, evaluate the trial judge’s exercise of discretion in refusing disclosure.

We shall address these three issues se-riatim.

II. SECTION 605 OF THE COMMUNICATIONS ACT OF 1934 DOES NOT PROHIBIT THE INTERCEPTION AND DIVULGENCE OF THE CONTENTS OF ELECTRONIC SURVEILLANCE IN THE FOREIGN AFFAIRS FIELD MADE PURSUANT TO EXECUTIVE ORDER.

Section 605 of the Communications Act provides in relevant part 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.”¹⁴

This section prompted considerable discussion as electronic surveillance became a more sophisticated and widely used device for the investigation of criminal activity. Much of the clamor for reform centered around the scope given to the section by the Nardone cases.¹⁵ Petitioners in those cases were tried and convicted of smuggling alcohol. Over their objection, federal agents were permitted to testify to the substance of petitioners’ telephone conversations that were wiretapped and overheard by the witnesses. In Nardone I, the Supreme Court held that, under § 605, “ ‘no person’ comprehends federal agents, and the bar on communication to ‘any person’ bars testimony to the content of an intercepted message.” ¹⁶ On re-trial, the prosecution attempted to present evidence gathered as a result of the illegal taps instead of testimony as to the actual contents of the overheard conversations. The Court, in Nardone II, made clear that the “fruits” of the taps, as well as the intercepted materials themselves, were inadmissible.

In response to the ostensible debilitating threat to federal investigatory activities presented by the interpretation placed on § 605 by the Nardone cases, the Department of Justice adopted the position “that the mere interception of telephone communications is not prohibited by federal law.” ¹⁷ The government, therefore, continued to wiretap after the Nardone cases even though aware that those cases, at least when the surveil-lances were conducted during the course of an investigation of domestic criminal activity, precluded the introduction of the records or fruits thereof into evidence. Meanwhile, the Department of Justice pressed for legislation lifting the evidentiary limitations erected on the foundation of § 605 by the Nardone cases. It did so on the obvious ground that the ability to use electronic surveillance to secure evidence in criminal convictions would make surveillance a more effective weapon against crime. The Department’s efforts were finally successful with the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, which specifically authorizes any electronic surveillance with prior judicial authorization.¹⁸ To contend, as Judge Aldisert does, that these efforts by various Attorneys General, constituted a concession that § 605 proscribed the introduction into evidence of material seized as a result of such surveillance does not seem realistic.¹⁹ The Attorneys General were advocating new legislation narrowing the potential ambit of § 605 and, in that context, suggesting that § 605 might be broad enough to reach situations like that presented in this case, no doubt represented sound strategy. In addition, the' Supreme Court, in the Nardone cases, was dealing with the warrantless electronic surveillance of suspected domestic criminals during routine investigations by federal agents. In the present case, we are faced with the significantly different situation of warrantless electronic surveillance pursuant to presidential directive in the sensitive area of foreign intelligence information gathering. It, therefore, would not seem appropriate to regard those cases as controlling here. Only one court of appeals has been faced with circumstances similar to those here and it dealt with the issue obliquely, if at all.²⁰ The Executive Branch’s continuing assertion of the power to wiretap per se and the conclusion that the use of intercepted material as evidence was prohibited by § 605 ²¹ and, thus, that the provision had an incidental effect not unlike a rule of evidence, does not, as Judge Aldisert urges, inexorably lead to the proposition that the statutory proscription against divulgence represented an evidentiary rule.²² The legislative history relating to § 605 is bereft of any suggestion that Congress intended to fashion a rule of evidence. On the contrary, the language of the statute seems to reach any divulgence, by the way of introduction into evidence or otherwise, of information obtained by way of wiretaps that would compromise the privacy of those whose conversations are overheard. Furthermore, the fact that the restrictions contained in § 605 have been enforced through the exclusion of evidence at a criminal trial should not obscure the broader aim of the statute— the discouragement of the interception of communications.²³

Thus, in our view, and apparently that of Judge Gibbons, who today dissents on other grounds, § 605 would appear to prohibit divulgence of intercepted communications obtained by electronic surveillances that are deemed within the parameters of the provision. Moreover, restricting any divulgence to members of the Executive Branch, as Judge Aldisert suggests, does not necessarily mean that the surveillance and such divulgence does not run afoul of § 605.²⁴ The proscriptions of § 605 are directed to surveillances generally, and the conjunction, “and,” separating “interception” and “divulgence,” does not seem intended to invite separate analysis. There is absolutely no indication that Congress contemplated situations where interceptions were unaccompanied by divulgences.

However, the conclusion that § 605 extends to all divulgences to any person of any surveillances within the provision’s ambit does not exhaust our inquiry into the lawfulness of the wiretaps in the case at hand. We still must determine whether § 605 reaches the type of surveillances producing the records that the district judge has refused to order disclosed to Ivanov and his counsel. Specifically, the question left unanswered is whether § 605 is to be construed to restrict the President’s authority to gather foreign intelligence information and use such information to assist in securing criminal convictions.²⁵

Keeping in mind that § 605 embodies a limitation on the power to engage in surveillance generally, we begin our analysis of the remaining question under the statute with the proposition that the President is charged with the duties to act as Commander-in-Chief of the Armed Forces²⁶ and to administer the nation’s foreign affairs,²⁷ powers that will receive fuller treatment in subsequent portions of this opinion.²⁸ To fulfill these responsibilities, the President must exercise an informed judgment. Decisions affecting the United States’ relationships with other sovereign states are more likely to advance our national interests if the President is apprised of the intentions, capabilities and possible responses of other countries. Certainly one means of acquiring information of this sort is through electronic surveillance. And electronic surveillance may well be a competent tool for impeding the flow of sensitive information from the United States to other nations.

In enacting § 605, the Congress did not address the statute’s possible bearing on the President’s constitutional duties as Commander-in-Chief and as administrator of the nation’s foreign affairs. The Senate and House reports suggest that the purpose of the Communications Act was to create a commission with regulatory power over all forms of electrical communications, whether by telephone, telegraph, cable or radio.²⁹ There appears to have been little or no discussion at all in Congress regarding § 605. Indeed, had Congress explored the question, it no doubt would have recognized, as Judge Gibbons’ extensive discussion may well indicate, that any action by it that arguably would hamper — since as we have previously concluded § 605 is intended to prohibit surveillances generally — the President’s effective performance of his duties in the foreign affairs field would have raised constitutional questions. We do not intimate, at this time, any view whatsoever as to the proper resolution of the possible clash of the constitutional powers of the President and Congress. Instead, we merely note that the absence of legislative consideration of the issue does suggest that Congress may not have intended § 605 to reach the situation presented in the present case. In the absence of any indication that the legislators considered the possible effect of § 605 in the foreign affairs field, we should not lightly ascribe to Congress an intent that § 605 should reach electronic surveillance conducted by the President in furtherance of his foreign affairs responsibilities. This would seem to be far too important a subject to justify resort to unsupported assumptions.

The Attorney General has certified, Ivanov does not deny, and the district court has found, that the surveillances at issue here “were conducted and maintained solely for the purpose of gathering foreign intelligence information.” ³⁰ Therefore, § 605 does not render them, in and of themselves, accompanied by subsequent disclosure, unlawful.

Although decisions subsequent to United States v. Coplon ³¹ hold that § 605 does not limit the President’s powers to gather foreign intelligence information,³² we are aware that Coplon may be read to undercut the position urged here as well as in the other cases subsequent to Coplon. We do not, however, despite our high regard for the late Judge Learned Hand, give to that case the conclusive reading suggested by Judge Gibbons. There, the court did not consider in any detail whether wiretaps for the purpose of gathering foreign intelligence information fell within the ambit of § 605. A close reading of the briefs in Coplon indicates that the question was not raised. Instead, the court merely assumed that the surveillance and disclosure together were illegal under § 605.³³ In the absence of any reasoning undergirding this assumption, we do not consider it is entitled to any great precedential effect and decline to adopt it here.

III. IVANOV’S FOURTH AMENDMENT RIGHTS WERE NOT INFRINGED.

Because of our conclusion that § 605 of the Communications Act neither prohibits the President from gathering foreign intelligence information nor limits the use to which material so obtained may be put, it becomes necessary to determine whether the surveillances producing the second set of records invaded Ivanov’s Fourth Amendment rights. If the surveillances did violate Ivanov’s constitutional rights, then disclosure of the records and a suppression hearing may be required under the mandate of the Supreme Court.³⁴

1. The Applicability of the Fourth Amendment to Electronic Surveill-ances Conducted Pursuant to the President’s Foreign Affairs Powers.

The expansive language of United States v. Curtiss-Wright Export Corporation ³⁵ provides support for the contention that the President is authorized to act unencumbered by the Fourth Amendment requirements of prior judicial approval and probable cause when he is dealing with national security matters.³⁶ The ramifications of Cur-tiss-Wright, however, remain somewhat enigmatic in this regard. To contend that customary Fourth Amendment analysis is to be abandoned whenever the President asserts that a particular search and seizure is incident to the conduct of foreign affairs activities is arguably uncongenial with a reasoned view of the relationship among the relevant constitutional provisions and the thrust of the Supreme Court decision in United States v. United States District Court.³⁷ We take no such position here.

The President in his constitutionally designated role as Chief Executive ³⁸ is charged with the duty to see that the laws of the United States are enforced and obeyed. Yet it is incontrovertible that the President, through his subordinates, cannot ignore the admonitions of the Fourth Amendment when investigating criminal activity unrelated to foreign affairs. Thus, evidence seized in the investigation of domestic crimes as a result of actions outside the bounds of the Amendment would not be admissible in a criminal prosecution.³⁹ The President’s authority to conduct foreign affairs similarly is implied, at least in part, from the language contained in Article II of the Constitution.⁴⁰ The Constitution contains no express provision authorizing the President to conduct surveillance, but it would appear that such power is similarly implied from his duty to conduct the nation’s foreign affairs. Although direct threats to the existence of governmental institutions or to territorial integrity are of immeasurable gravity, there would seem to be nothing in the language of the Constitution to justify completely removing the Fourth Amendment’s requirements in the foreign affairs field and, concurrently, imposing those requirements in all other situations.

In United States District Court, the Supreme Court refused to forego traditional Fourth Amendment analysis despite the government’s claim that a war-rantless surveillance of a domestic organization believed by the Executive to represent a threat to national security did not overstep the bounds of the Fourth Amendment. The Court implicitly rejected the contention that the existence of the Executive’s belief that national security was involved somehow rendered the requirements of the Fourth Amendment inoperative. It went on to hold that the government must secure a warrant before conducting the type of surveillances at issue therein.⁴¹

Thus, we conclude, as Judge Gibbons does, that the Fourth Amendment is also applicable where, as here, the President is acting pursuant to his foreign affairs duties even though the object of the surveillance is not a domestic political organization. Our differences with Judge Gibbons’ opinion center primarily on the necessity for prior judicial authorization under the circumstances of this case.

2. The Provisions of the Fourth Amendment.

Assuming then that the Fourth Amendment is applicable,⁴² we must now examine the requirements of that provision. The Fourth Amendment provides as follows:

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.

The two substantive clauses of the amendment possess independent significance. First, all searches and seizures, even if authorized by warrant, must be reasonable⁴³ At a minimum, this means that some form of probable cause for the search and seizure must exist. Second, even a reasonable search may be unlawful if the official fails to secure a warrant. “We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” ⁴⁴

Here a search warrant was not secured prior to the surveillances. We must therefore, determine whether this fact, in and of itself, renders the wiretaps repugnant to the Fourth Amendment. Since, as will be shown, we are unable to conclude that the absence of a search warrant under these circumstances is fatal, we must then otherwise evaluate the reasonableness of the infringement of Ivanov’s privacy.

a. The Warrant Requirement.

The exceptions to the warrant requirement represent cautious reponses on the part of the Supreme Court to specific and exigent factual situations. Thus, an automobile may be searched without a warrant to prevent the transfer of contraband to another locality when there is insufficient opportunity to obtain a warrant.⁴⁵ An officer may search a person without a warrant incident to a lawful arrest or when he has probable cause to arrest in order to avert possible destruction of evidence or when there is a possibility of an attempt to use a concealed weapon to injure the officer or' facilitate escape.⁴⁶ In other circumstances, even though probable cause to arrest may not exist, an officer may “frisk” a person he has properly detained for questioning if he believes that the person may be armed and dangerous.⁴⁷

The Court has also narrowed the ambit of the Fourth Amendment warrant requirement where the intrusion is a “home visit” by a welfare worker.⁴⁸ Several considerations — the rehabilitative aspects of the visit, the noncriminal nature of the investigation, and the strong state interest in having an efficient administrative procedure whose object is to promote the welfare of the children of assistance recipients — combined to lead to the conclusion that the warrantless intrusion, if viewed as a search, is not subject to the warrant requirement.⁴⁹

While we acknowledge that requiring prior approval of electronic surveillance in cases like the present one might have some salutary effects — a judge, for example, could assure that the Executive was not using the cloak of foreign intelligence information gathering to engage in indiscriminate surveillance of domestic political organizations ⁵⁰ — on balance, the better course is to rely, at least in the first instance, on the good faith of the Executive and the sanctions for illegal surveillances incident to post-search criminal or civil litigation. One of the elements that prompted the Supreme Court to dispense with the warrant requirement in the “home visit” situation was the strong public interest involved. In the present ease, too, a strong public interest exists: the efficient operation of the Executive’s foreign policy-making apparatus depends on a continuous flow of information.⁵¹ A court should be wary of interfering with this flow.

It would be unfortunate indeed if, as Judge Gibbons seems to suggest, the President must act illegally to perform his constitutional duties. Yet, if the President must act secretly and quickly to investigate an attempt by a foreign agent to obtain important intelligence information, such a result may follow under Judge Gibbons’ analysis. Also, foreign intelligence gathering is a clandestine and highly unstructured activity, and the need for electronic surveillance often cannot be anticipated in advance. Certainly occasions arise when officers, acting under the President’s authority, are seeking foreign intelligence information, where exigent circumstances would excuse a warrant. To demand that such officers be so sensitive to the nuances of complex situations that they must interrupt their activities and rush to the nearest available magistrate to seek a warrant would seriously fetter the Executive in the performance of his foreign affairs duties.

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

b. The probable cause requirement

Although, as we have held, a warrant prior to search is not an absolute prerequisite in the foreign intelligence field when the President has authorized surveillance, a judge will be called upon, in some instances, to ascertain the legality of a warrantless search already conducted.⁵² The opportunity for post-search judicial review represents an important safeguard of Fourth Amendment rights and should deter abuse that might be caused by the necessary relaxation of the warrant requirement.

The foundation of any determination of reasonableness, the crucial test of legality under the Fourth Amendment, is the probable cause standard.⁵³ Although most often formulated in terms of an officer’s probable cause to believe that criminal activity has or will take place, the standard may be modified when the government interest compels an intrusion based on something other than a reasonable belief of criminal activity, especially when the scope of the intrusion is limited.⁵⁴

The government interest here —to acquire the information necessary to exercise an informed judgment in foreign affairs — is surely weighty. Moreover, officers conceivably undertake certain electronic surveillance with no suspicion that a criminal activity may be discovered. Thus, a demand that they show that before engaging in such surveillance they had a reasonable belief that criminal activity would be unearthed would be to ignore the overriding object of the intrusions. Since the primary purpose of these searches is to secure foreign intelligence information, a judge, when reviewing a particular search must, above all, be assured that this was in fact its primary purpose and that the accumulation of evidence of criminal activity was incidental. If the court, for example, finds that members of a domestic political organization were the subjects of wiretaps or that the agents were looking for evidence of criminal conduct unrelated to the foreign affairs needs of a President, then he would undoubtedly hold the sur-veillances to be illegal and take appropriate measures.

Since, we reiterate, the district court has found that the second set of interceptions of conversations of Ivanov were “solely for the purpose of gathering foreign intelligence information,” they are reasonable under the Fourth Amendment. Because we have already concluded that a warrant was not required under the circumstances here, we, therefore, hold that Ivanov’s Fourth Amendment rights were not violated.⁵⁵

IY. IN CAMERA EXAMINATION

The distinguished district court judge reviewed in camera the records of the wiretaps at issue here before holding the surveillances to be legal. If the surveillances had been found illegal, Aider-man, of course, would have required disclosure of these records to Ivanov prior to an adversary hearing on the issue of taint. However, since the question confronting the district court as to the second set of interceptions was the legality of the taps, not the existence of tainted evidence, it was within his discretion to grant or to deny Ivanov’s request for disclosure and a hearing. The exercise of this discretion is to be guided by an evaluation of the complexity of the factors to be considered by the court and by the likelihood that adversary presentation would substantially promote a more accurate decision.⁵⁶

As stated, Ivanov does not challenge the finding of the district court that the “surveillances were conducted and maintained solely for the purpose of gathering foreign intelligence information.” Nor does he contend that he was the object of surveillance because of domestic political activity or because of conduct unrelated to his own espionage concerns. Under these facts, we fail to see how disclosure of the records of the wiretaps and an evidentiary hearing would serve to shed further light on either the legal question involved in this appeal — whether the President has authority to conduct warrantless surveil-lances in the foreign affairs field — or its factual underpinnings — whether the surveillances at issue were, in fact, conducted pursuant to the President’s foreign affairs authority.

Moreover, the nature of information contained in these records with respect to the relations of this nation with foreign powers counsels court-ordered disclosure only in the most compelling situations. Thus, we hold that the district court’s failure to order disclosure of the records of the second set of interceptions or to hold a hearing regarding them did not constitute an abuse of discretion.

V. CONCLUSION.

The present case raises issues concerning a clash of interests' of highest concern to the vitality of this nation. As is typical under our system of government, the conundrum implicit in the controversy has been brought to the judiciary for authoritative resolution. Ivanov contends that the Communications Act should be construed to bar such surveillance and the use of material obtained thereby and that without prior judicial authorization the President and his counselors may not constitutionally intercept his telephone communications. The government asserts that the Com-municatíons Act should not be so construed and, with respect to the constitutional question, maintains that there is Presidential power to engage in war-rantless surveillance to gather foreign intelligence information.

Principled adjudication of this knotty matter cannot properly be achieved by a doctrinaire preference for one interest or the other. Both executive authority in the foreign affairs area and society’s interest in privacy are of significance, and are equally worthy of judicial concern.

Rarely, if ever, do the phrases of the Constitution themselves decide cases without at least some interpretative assistance from the judiciary. The Constitution speaks through the judges, but its phrases are seldom so cabined as to exclude all flexibility. Charged with the assignment to make a choice, a judge must be responsible for the choice he makes.

The importance of the President’s responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President’s powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation’s foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.

To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourth Amendment proscribes only “unreasonable” searches and seizures.⁵⁷

And balanced against this country’s self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov’s Fourth Amendment rights.⁵⁸

Accordingly, the judgment of the district court denying Ivanov’s request for disclosure and an evidentiary hearing will be affirmed.

1 . See Judge Aldisert’s concurring and dissenting opinion herein for a fuller exposition of the factual background of this case.

2 . 384 F.2d 554 (3d Cir. 1967).

3 . Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

4 . Id. at 186, 89 S.Ct. at 973.

5 . 342 F.Supp. 928 (D.N.J.1972).

6 . 318 F.Supp. 66 (D.N.J.1970).

7 . The government appears to have disclosed to Butenko’s counsel all records of wiretapped conversations involving Butenko. Id. at 68 n. 2.

8 . 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

9 . Id. at 182, 89 S.Ct. at 971.

10 . 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969) (per curiam).

11 . Id. at 317, 89 S.Ct. at 1100.

12 . Note, The Supreme Court, 1968 Term, 83 Harv.L.Rev. 60, 175 (1969).

13 . Ivanov contends that the Solicitor General conceded at oral argument before the Supreme Court in Alderman that the second set of interceptions were unconstitutional. See Giordano v. United States, 394 U.S. 310, 313-314 n. 1, 89 S.Ct. 1163, 22 L.Ed.2d 297 (Stewart, X, concurring). Assuming ar-guendo that Ivanov is correct in this regard, it appears that the Supreme Court refused to accept any such concession and, instead, ordered the district court on remand to consider the question of the legality of these surveillances. Alderman v. United States, 394 U.S. 165, 186, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). See United States v. Butenko, 318 F.Supp. 66, 69 (D.N.J.1970).

14 . 47 U.S.C. § 605.

15 . Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937) [Nardone I] ; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939) [Nardone II.]

16 . 302 U.S. at 381, 58 S.Ct. at 276.

17 . Rogers, The Case for Wire Tapping, 63 Yale L.J. 792, 793 (1954) ; Brownell, Public Security and Wire Tapping, 39 Cornell L.Q. 193, 197-98 (1954).

18 . 18 U.S.C. §§ 2510-2520.

19 . During the period covered by the law review articles referred to in Judge Plusert’s dissent, electronic surveillances in the field of foreign affairs were made without prior warrants. Indeed, in the instant case, the surveillances were made during the time the late Robert Kennedy was the Attorney General.

20 . See p. 605 infra.

21 . See, e.g., Sablowsky v. United States, 101 F.2d 183 (3d Cir. 1938).

22 . Cf. Developments in the Law — The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1249 (1972). But see Sablowsky v. United States, 101 F.2d 183, 189 (3 Cir. 1938) where Judge Biggs stated that “the Nardone Case holds clearly that Section 605 creates a rule of evidence.

23 . If, for example, a civil suit were brought by a participant in the conversation, against persons who illegally overheard a conversation, the purpose of the statute — to deter surveillance — would be furthered by some disclosure, at least to the extent such disclosure is necessary to establish the claimed unlawful interception. Cf. Bivens v. Six Unknown Named Agents of FBI, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

24 . It might be contended, if the “any person” language of the statute were construed liberally, that a divulgence solely within the Executive Branch would not violate § 605. This construction of § 605 would seem to divide the permissible from the impermissible channels of communication for intercepted material along lines not susceptible to explanation in terms of effective governmental response to potentially unlawful activity or in terms of the privacy interests implicated by the statute. Under this interpretation, for example, the Attorney General could openly transmit the contents of intercepted messages through the labyrinthine federal bureaucracy with the attendant risk of substantial invasion of privacy unfettered by even the hortatory effects of § 605, while a discreet revelation of the same material to an officer of a state to aid the latter in fulfilling his law enforcement duties would be proscribed.

25 . With the passage of the Omnibus Crime Control and Safe Streets Act of 1968, it appears that the only limitations on the President’s authority to engage in some forms of electronic surveillance are those set forth in the Constitution. Section 2511(3) provides as follows:

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1103; 47 U.S.C. 605) 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 jjroceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

26 . U.S.Const. Art. II § 2.

27 . United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-322, 57 S.Ct. 216, 81 L.Ed. 255 (1936).

28 . See pp. 611, 612, 615 infra.

29 . See Sen.Rep.No.781, 73d Cong., 2d Sess. 1 (1934), H.R.No.1850, 73d Cong., 2d Sess. 3 (1934).

30 . 318 F.Supp. 66, 70-73.

31 . 185 F.2d 629 (2d Cir. 1950).

32 . United States v. Clay, 430 F.2d 165 (5th Cir. 1970), rev’d on other grounds, 400 U.S. 990, 91 S.Ct. 457, 27 L.Ed.2d 438 (1971) ; United States v. Hoffman, 334 F.Supp. 504 (D.D.C.1971) ; United States v. Dellinger, Crim. No. 60 CR 180 (Mem.Op.N.D.Ill. Feb. 2, 1970), rev’d on other grounds, 472 F.2d 340 (7th Cir. 1972) ; United States v. Butenko, 318 F.Supp. 66 (D.N.J.1970) (the present case in the district court) ; United States v. Brown, 317 F.Supp. 531 (1970), rev’d on other grounds, 456 F.2d 1112 (5th Cir. 1972) ; United States v. Stone, 305 F.Supp. 75 (D.D.C.1969). Compare United States v. Smith, 321 F.Supp. 424 (D.C.Cal.1971) (distinguishing domestic situation) ; United States v. Sinclair, 321 F.Supp. 1074 (E.D. Mich.1971) (same) aff’d sub nom., United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

33 . Id. 185 F.2d at 636.

34 . See pp. 598-599 supra.

35 . 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). The Court in Curtiss-Wright held that the Congress’ delegation to the President of the authority to prohibit the sale of weapons to certain countries engaged in hostilities with each other was not unconstitutional.

36 . “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.

37 . 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

38 . U.S.Const. Art. II, § 1.

39 . The hypothetical postulated by Judge Gibbons, see p. 628 infra, may well fall within the ambit of United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). See p. 608 infra.

40 . Although, it seems that Justice Sutherland, the writer of the Supreme Court’s opinion in Curtiss-Wright, did not agree that the foreign affairs power of the federal government was founded on a constitutional grant, Justice Sutherland’s position has recently been challenged by Professor Lofgren on historical grounds. Professor Lofgren also contends that the Court has not yet read Curtiss-Wright as embodying the philosophy apparently espoused by Justice Sutherland. See Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 Yale L.J. 1 (1973).

41 . In United States District Court, the Supreme Court specifically stated that the case did not present questions relating to the foreign affairs powers of the Executive: “Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers within or without this country.” 407 U.S. at 308, 92 S.Ct. at 2132.

42 . The electronic, surveillances at issue here occurred prior to the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), but “the Government does not rely on pre-Katz law . . . .” 318 F.Supp. 66, 70 (1970). Kate overturned the earlier rule that the Fourth Amendment did not extend to electronic surveillance unless there was a technical trespass. See, e.g., Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Thus, the government’s posture obviates the need to review the procedure by which the surveillance devices were installed.

43 . Go-Bart Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931). See Spritzer, Electronic Surveillance by leave of the Magistrate: The Case in Opposition, 118 U.Pa.L.Rev. 199, 181 (1969).

44 . McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). “The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ‘per se unreasonable,’ in the absence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 470-471 (1971).

“[Ejxcept in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it lias been authorized by a valid search warrant.” Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

45 . E. g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

46 . E. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ; Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) ; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

47 . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

48 . Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971).

49 . See also United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972) (warrantless use of magnometer and warrantless search of hand luggage of airline i)assenger in some circumstances are not unconstitutional).

50 . See United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

51 . The surveillance in this case, of course, seems to have been designed to impair the escape to foreign powers of sensitive information concerning the foreign policy and military posture of the United States. We see no reason to distinguish this activity from the foreign intelligence gathering activity. See 18 U.S.C. § 2511(3).

52 . A court must examine the legality of a search, for example, when a defendant in a criminal case moves to suppress evidence produced by the search or when the plaintiff in a civil suit bases his request for damage relief against federal officers on the alleged illegality of a search of his person or home. See note 21 supra.

53 . Camara v. Municipal Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). However, a search based upon probable cause may not comport with the Fourth Amendment if, for example, its scope is unreasonably broad. See Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 868, 20 L.Ed.2d 889 (1968).

54 . Adams v. William, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ; Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed. 2d 408 (1971) ; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; Ca-mara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

55 . 18 U.S.O. § 3504(a)(2), a portion of the Organized Crime Control Act of 1970, provides in relevant part as follows :

(a) In any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—

(2) disclosure of information for a determination if evidence is inadmissible because it is the primary product of an. unlawful act occurring prior to June 19, 1968, or because it was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, shall not be required unless sucli information may be relevant to a pending claim of such inadmissibility ; and

(b) As used in this section “unlawful act” means any act the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.

It would appear that this provision becomes operative when evidence has been gathered by unlawful means. Since we have determined the searches herein to be lawful, this provision appears inapposite. We need not, therefore, discuss the effect of the intervening enactment of this provision on the Supreme Court’s mandate in Alderman. Since Chief Judge Seitz and Judge Gibbons conclude that these surveillances were illegal, they, of course, do deal with this issue.

56 . If we were to hold, as Judge Aldisert intimates, that under § 605 the surveillance is not illegal unless the interception, or the fruits thereof, has been introduced at trial, it would seem that disclosure would be required before a determination is made that the surveillance was, in fact, illegal. For the question whether the contents or the “fruits” of the interception had been divulged at trial appears quite similar to the question whether the contents or the “fruits” of an illegal surveillance have tainted a conviction. Ivanov would, undoubtedly, ask for disclosure of the records, claiming that he could not effectively probe, at the hearing, the issue whether the contents had been divulged. Under such an interpretation, the purport of Alderman would then seem to require that the district court grant Ivanov’s request. Thus, under Judge Aldisert’s construction of § 605, there would be disclosure of the records of the surveillances before such surveillances have been held to be illegal. Cf. Totten v. United States, 92 U.S. 105,106-107, 23 L.Ed. 605 (1876).

57 . United States v. Slocum, 464 F.2d 1180, 1182 (3d Cir. 1972).

58 . Nearly 85 years ago, Mr. Justice Field, speaking for the Supreme Court, observed: “To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated.” Chinese Exclusion Case, 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068 (1889).