Turmoil on Taps

Whatever else the Nixon Administration may think of radical protesters, it takes them very seriously. Departing Attorney General John Mitchell has made no secret of the fact that he would like to use wiretaps at will whenever the Justice Department is investigating any groups it considers "committed to the use of illegal methods to bring about changes in our form of government." But what the Justice Department wants and what the courts approve are often two different things. Thus last week the department found itself in the Supreme Court, defending its desire to wiretap.

The case at issue derives from the bombing of a CIA office in Ann Arbor, Mich., in 1968. The Government charged three members of a left-wing group called the White Panthers, but the principal suspect, Lawrence ("Pun") Plamondon, learned that federal agents had overheard some of his telephone conversations. Plamondon, a onetime sandalmaker and co-founder of the Panthers, demanded to know what evidence the Government had acquired from the tap. Government lawyers refused to tell him.

The tap was perfectly legal, they said, even though it had been installed without a judicial warrant, because warrants are not necessary in cases involving a threat to "national security." This is true not only for the traditional danger from a foreign power, the Justice Department maintains, but also for the security threat posed by the current radical protest movement. Besides, the Government said, the overheard conversations had nothing to do with the bombing charges, and the tap was on the phone of another organization, not the White Panthers.

No Secrets. The prosecution did agree to send details of the tap to Federal District Judge Damon J. Keith, who was presiding over the Plamondon pretrial hearing. Keith rejected the Government's arguments. He ruled that according to an earlier Supreme Court decision, if the Government wanted to prosecute Plamondon, it would have to tell him what it had overheard so that no illegally obtained evidence would be used against him.

In the past three years, four cases involving warrantless internal-security wiretaps have reached the courts. Two decisions have gone for the Government, two against. In the Plamondon case, the Sixth Circuit Court of Appeals endorsed Judge Keith's decision. Mitchell determined to appeal.

In his argument to the Supreme Court last week, U.S. Solicitor General Erwin Griswold insisted that radical protests within the U.S. are "interrelated" with security threats from abroad. The Government was merely gathering intelligence to protect the nation, he said, not deliberately seeking evidence for criminal prosecutions. If each case had to be submitted to a judge to get a warrant, Griswold added, "the Government would have to disclose sensitive and highly secret information." Judges, he said, are not as qualified as the Attorney General to make the "subtle inferences" involved. Even though the Attorney General might abuse his power, that "is not a valid basis for denying [him] the authority."

The Government's chief challengers were William Gossett, a former president of the A.B.A., and Abraham Sofaer, an associate professor at Columbia Law School. The Fourth Amendment bans all "unreasonable" searches, they pointed out, and precedent has clearly held that searches without a warrant are unreasonable, except in certain narrowly defined circumstances. The notion that judges cannot be entrusted with secret information "is totally unsupported," they said. As for national security, they argued that any special government powers cannot be extended to domestic matters or they would "swallow up the fundamental rights written to protect Americans from the exercise of arbitrary power."

While the justices seemed from their questioning last week to be skeptical of the Government's position, there was a difficulty that suffused all of the arguments--the Government assumption that militant critics threaten the safety of the state, and the defense assumption that the Government would suppress dissent in any way it could. Not even the most eloquent court ruling can completely end such mutual suspicions.

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