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Law Professor Herman Schwartz of the State University of New York at Buffalo, one of the staunchest opponents of unregulated Government wiretapping, agreed. "Once you have such a tool," he said, "the temptation to use it is enormous." It could, others argued, be employed almost at will against any political dissident who happened to arouse the anger of an incumbent Attorney General. Describing the Justice Department's approach as a serious threat to the First Amendment (freedom of speech and assembly) and the Fourth (protection against unreasonable search and seizure), the American Civil Liberties Union has asked for a federal court injunction to halt all bugging of a domestic political character that is not explicitly authorized by order of the courts.
The new Government policy, the A.C.L.U, insisted, has already created "a chill and a pall" among those legitimate political protesters who might fall within the Government's new eavesdropping "dragnet." University of Michigan Law Professor Yale Kamisar speculated recently that the Nixon Administration was openly inviting a showdown with the Supreme Court on the wiretapping issue. "The court is hurt," explained Kamisar, "and the Justice Department thinks it can win, given the current public climate about crime and coddling criminals."
Embassy Snooping. It was the high court that brought the shadowy issue of electronic surveillance into the open in the first place. Last March, in the case of Alderman v. U.S., the court held that a defendant may demand to see the transcripts of any illegal bugs or wiretaps of his conversations, or those of people on his premises. The 5-to-3 decision forced the Government to yield not only its Hoffa records, but also those of ex-Heavyweight Champion Cassiu Clay's conversations with King and Elijah Muhammad.* Yet the Government had a far more important reason for dissatisfaction with the Alderman decision.
Justice Department officials pointed out that the opinion did not exempt the bugs that the FBI has long planted, without judicial sanction, along Washington's Embassy Row. Anyone who phoned an embassy and was later accused of a crime, they argued, would now be entitled to force the Government to reveal such eavesdrops—even though they might involve delicate international affairs. In turning down the Government's motion for a new hearing, Justice Potter Stewart noted that the Court had ordered the release of records only when the eavesdropping violated the Fourth Amendment—and that it had not ruled on the legality of bugging for national-security reasons. To the Justice Department, at least, Stewart's statement seemed to mean a green light for any national-security tapping that it felt necessary.