States, upon an application of the United States Attorney and his assistants which was supported by affidavit of Richard G. Kleindienst, Deputy Attorney General of the United States, delivered to the Court a sealed exhibit containing logs of telephone conversations in which defendant Paul Enten was one of the conversing parties.
In conformity with Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969) this Court reviewed the sealed exhibit to determine whether the surveillance was lawful. Insofar as that determination is concerned, "a finding by the District Court that the surveillance was lawful would make disclosure and further proceeding unnecessary." Giordano v. United States, 394 U.S. 310, 313, 89 S. Ct. 1163, 1165, 22 L. Ed. 2d 297 (1969). After thoroughly considering the sealed exhibit and affidavit in support thereof, this Court finds, for the following reasons, that the surveillance was lawful and enters this memorandum opinion, the following to constitute findings of fact and conclusions of law as ordered in Alderman.
In his affidavit, the Deputy Attorney General represents that the surveillance involved in this case "was authorized by the President of the United States, acting through the Attorney General in the exercise of his authority relating to the nation's foreign affairs as set forth in 18 U.S.C. 2511(3)." The issue then presented is whether the Attorney General's authorization of a wiretap for the purpose of gathering foreign intelligence information violates the Fourth Amendment. This issue has been considered by a number of courts including the District Court and the Court of Appeals in United States v. Clay, 430 F.2d 165 (5th Cir. 1971), 403 U.S. 698, 91 S. Ct. 2068, 29 L. Ed. 2d 810 (1971).
In an unreported decision in Clay, the District Court Judge, Judge Ingraham said:
Whether the Attorney General's authorization of a wiretap for the purpose of gathering foreign intelligence information violates the Fourth Amendment is an issue of extreme gravity. It has never been decided by the Supreme Court, and this court will not speculate on the direction in which the Justices will lean. See concurring opinion of Justice Stewart in Giordano v. United States, supra, 394 U.S. at 314-315, 89 S. Ct. 1163. The court is aware, of course, of the abuses possible should an Attorney General authorize extensive wiretaps under the guise of collecting foreign intelligence information. But the court also recognizes that such investigations are, in many instances, vital to the maintenance of national security.