conniving in these criminal acts. The note concludes by stating "that because of its failure to ensure normal conditions for the activities of Soviet institutions in the United States that the United States Government cannot, therefore, count on such conditions being ensured for American institutions in the Soviet Union." The State Department concludes by indicating that the Soviets now raise the threat of officially inspired retaliation. Exhibit B-4(7).
(m) January 7, 1971, Secretary of State advises American Embassy, Moscow, of meeting between Dobrynin and Hillenbrand. Dobrynin condemned activities of JDL and said the Soviets did not want to create an anti-United States feeling in the USSR but there are definite limitations to what one can bear. Exhibit B-4(8).
(n) January 6, 1970, American Embassy, Moscow, advises Secretary of State that Soviet Embassy statement of January 5, 1971 was carried in Moscow papers and includes threat of possible retaliation against United States establishments in USSR. Embassy advises of flock of Soviet telegrams to Embassy expressing indignation of Zionist activities and recites one incident of verbal harassment of a foreign service officer. Embassy also advises of friction in their contacts outside ministry of foreign affairs. Exhibit B-5(5).
(o) January 9, 1971, Secretary of State advises American Embassy, Moscow, regarding receipt of Soviet protests concerning January 8, 1971 explosion at Embassy in Washington. The Soviet protest note refers to JDL's announced intentions to make attempts on the lives of employees in Soviet establishments in the United States. State Department official expressed shock of implied threat of retaliation on Soviet side. Soviet official warned that Soviet authority would have trouble controlling "feelings of our people" in USSR should incidents continue unabated. Exhibit B-3(6).
(p) January 10, 1971, American Embassy, Moscow, advises Secretary of State regarding article in Izvestiya on January 9 concerning JDL acts of terrorism. On evening of January 9 an act of vandalism occurred to the car of AP correspondent in Moscow as well as a separate act of harassment to an Embassy officer. Protest letters to American Embassy continue with threats to sack Embassy and damage American automobiles. Exhibit B-3(7).
(q) January 11, 1971, Secretary of State advises American Embassy, Moscow, of State Department protest of Soviet harassment of Americans in Moscow. Exhibit B-3(8). On January 12, 1971, American Embassy reports to Secretary of State on American protest to Soviet Government for acts of vandalism which reveal "unmistakable signs of retaliation." Exhibit B-3(10).
(r) January 12, 1971, USUN to Secretary of State regarding news report that JDL leader Kahane is forming teams to "follow, question and harass" Soviet diplomats in New York City. SMUN official complained to USUN officials of Kahane's latest threat. Exhibit B-3(9).
(s) January 14, 1971, USUN advises Secretary of State of receipt of protest note from Soviet Mission listing various hostile acts against Soviet institutions by JDL. Exhibit B-3(11).
(t) February 17, 1971, USUN advises Secretary of State of note from SMUN protesting anti-Soviet demonstration by JDL at SMUN and campaign of harassment against Soviet personnel. Exhibit B-3(12).
(u) March 18, 1971, Secretary of State advises American Embassy, Moscow, that Dobrynin lodged a formal protest regarding violation of diplomatic premises in Washington by JDL and of JDL campaign to disrupt normal functioning of Soviet offices by tying up telephone lines. Exhibit B-4(10).
(v) March 24, 1971, Secretary of State advises American Embassy, Moscow, of receipt of protest note by Soviets regarding JDL activities. Exhibit B-3(13).
(w) April 23 and 24, 1971, series of telegrams between Secretary of State and American Embassy and USUN regarding protests from the Soviet Government regarding the bombing of the Amtorg offices on April 22. The Soviet Embassy advised the State Department that the American explosion was the third explosion organized by the league in recent times against Soviet organizations. Exhibit B-4(12). Protest note received by the American Embassy in Moscow refers to the unbridled campaign hostile to the USSR being conducted in the United States by the JDL "which has proclaimed as its goal the creation of intolerable conditions for the work of Soviet establishments in the United States and which is using for this, methods of vandalism and terror. * * * The United States Government is deluding itself if it believes that the Soviet public will not react to the provocative acts of the American Zionists." Exhibits B-5(8) and (9). See also Exhibits B-5(6), B-4(12) and B-3(14). The foregoing are but a few of numerous other telegrams and memoranda during the same period between the same parties and concerning the same subject matter.
12. The surveillances in question were authorized by the Attorney General after a determination was made by him that the activities of the JDL were obviously detrimental to the continued peaceful relations between the United States and the Soviet Union and threatened the President's ability and constitutional authority to conduct the foreign relations of this country.
Conclusions of Law
1. The electronic surveillances of JDL headquarters in New York City during the month of October, 1970 and from January 5, 1971 to July 1, 1971 were a proper exercise of the President's constitutional authority to conduct the nation's foreign relations and his power to protect the national security.
2. Section 2511(3) of Title 18, United States Code, specifies certain conduct by the President which is outside of the ambit of the prohibitions and penalties set forth in Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520. The pertinent part of Section 2511(3) provides:
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1103; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. * * * The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power."
3. Congress through Section 2511(3) disclaimed any attempt to legislate either affirmatively or negatively with respect to the national security powers of the President and specifically referred to the authority of the President to conduct electronic surveillance pursuant to his national security powers.
4. The Supreme Court in United States v. United States District Court for the Eastern District of Michigan and the Honorable Damon J. Keith, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972) concluded that Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520, did not apply to national security surveillances by the Executive. Specifically, the Court concluded in its discussion of this provision that while Section 2511(3) constitutes ". . . an implicit recognition that the President does have certain powers in the specified areas" (407 U.S. at 303, 92 S. Ct. at 2130) * * * "[we] . . . think the conclusion inescapable that Congress only intended to make clear that the Act (18 U.S.C. §§ 2510-2520) simply did not legislate with respect to national security surveillances." Id. at 306, 92 S. Ct. at 2131.
5. It is concluded therefore that 18 U.S.C. §§ 2510-2520 has no application and cannot be invoked with respect to electronic surveillances conducted pursuant to the President's national security powers. Plaintiffs' complaint and claim for damages pursuant to 18 U.S.C. § 2520 have no basis in the statute relied upon.
6. In deciding the issue of lawfulness of the surveillance in question, it is noted that the Supreme Court in Keith expressly reserved the question as to the scope of the President's surveillance power with respect to the foreign aspects of a national security surveillance. The Supreme Court in Keith said:
"It is important at the outset to emphasize the limited nature of the question before the Court . . . [The] instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without the country . . . [for] there is no evidence [in this case] of any involvement, directly or indirectly, of a foreign power.
And, in its conclusion, the Court reiterated the scope of its decision by stating that:
"We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." 407 U.S. at 321-322, 92 S. Ct. at 2139.