UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, UNITED STATES v. 407 U.S. 297 (1972)

Most Presidents have claimed inherent executive authority to use electronic surveillance for national security purposes without complying with conventional fourth amendment requirements such as prior court approval. In several earlier decisions, such as katz v. united states (1967), and in the 1968 statute authorizing federal and state officials to use electronic eavesdropping, the issue had been left open.

During the vietnam war, Attorney General John N. Mitchell approved a wiretap "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the government." The Supreme Court unanimously ruled that where threats by domestic organizations were concerned, neither section 2511(3) of the 1968 act nor the Constitution gave the President authority to use electronic surveillance without first obtaining a warrant from a magistrate. The Court thus rejected the President's claim of inherent power. The Court did not decide whether the Fourth Amendment's warrant requirement applied to activities of foreign powers or their agents; a 1978 statute now governs this. The Court also suggested that Congress could authorize standards for intelligence gathering for domestic security purposes that are less stringent than for law enforcement; Congress has not done so.

Herman Schwartz
(1986)