Misunderstanding About Bugs

Three weeks ago the Supreme Court ruled that the Government must show a defendant the transcripts of any illegal eavesdropping on his conversations or conversations on his premises--or else the Government must drop the case. Justice Department attorneys were aghast. Was the court unaware, they wondered, that there are bugs in foreign embassies, and that in many cases the Government could hardly disclose all details of such an eavesdrop? Attorney General John Mitchell called the court's decision "a great disappointment," and Solicitor General Erwin Griswold took the unusual step of filing a Government petition for a rehearing. Last week, in a speedy rebuff to the Government, the Supreme Court turned Griswold down.

His petition had argued that the court was, in effect, granting legal immunity to anyone who was bugged in the course of espionage or counterespionage investigations. Indeed, he added, the decision might even "point the way for the well-advised person to obtain such immunity by simply making a telephone call" to, for instance, the Russian embassy.

Eavesdropping Disclosure. In a brief statement concurring with the court, however, Justice Potter Stewart twitted Griswold and Government lawyers for having misunderstood the earlier holding in one important respect. All the court had done, said Stewart, was to require eavesdropping disclosure "where the surveillance violated the Fourth Amendment. We did not decide that any of the surveillances did violate the Fourth Amendment." Eavesdropping that is necessary to national security may well be legal, he said, and lower court judges may be free to decide that issue in chambers, without the defendant's participation. Thus, Stewart intimates, public disclosure of a bug or a wiretap may not really be necessary for a prosecution unless the judge decides that it was illegal.

"One might suppose that all of this should be entirely clear to any careful reader of the Court's decision," wrote Stewart in acerb conclusion. "Perhaps so, and perhaps, therefore, what I have said is quite unnecessary. But ten years of experience here have taught me that the most carefully written opinions are not always carefully read--even by those most directly concerned." Stewart's gibe may have seemed excessive to those who have read some of the court's "carefully written opinions," particularly when it is remembered that the Solicitor General, a former dean of the Harvard Law School, has had ample experience at the task.

Nonetheless, Griswold would probably be content to swallow the rebuke if he could be certain that the substance of Stewart's statement is supported by other members of the court. But Stewart, who generally gives greater weight to the claims of law enforcement than the other justices, was speaking solely for himself. And even he did not come out clearly for the inchamber proceeding. Thus the Government has no assurance that the court will hold that the issue of a bug's legality can be decided privately.

If Stewart's words gave any encouragement to the Government, last week's actual ruling by the court brought even more hope to others. Just to make clear that its earlier decisions stood, the court ordered lower courts to begin looking into the convictions of a variety of defendants--including Cassius Clay and Jimmy Hoffa--to determine whether they were illegally bugged and, if so, whether what was heard affected their trial.

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