Application for bail presented to MR. JUSTICE REHNQUIST, and by him referred to the Court, denied.
MR. JUSTICE DOUGLAS, dissenting.
Mr. Justice Holmes in Olmstead v. United States, 277 U.S. 438, 470 (dissenting), called wiretapping "dirty business." That decision was rendered in 1928. Since that time "dirty business" has become the apt phrase describing the regime under which we now live. The warrant requirement which this Court imposed as a condition to that kind of surveillance, Berger v. New York, 388 U.S. 41, and the Act of Congress which implemented that decision, 18 U. S. C. §§ 2510-2520; United States v. U.S. District Court, 407 U.S. 297, have been flouted. We who live in the District of Columbia know that electronic surveillance is commonplace. I am indeed morally certain that the Conference Room of this Court has been "bugged"; and President Johnson during his term in the White House asserted to me that even his phone was tapped.
We deal with a disease that has permeated our society. Certainly Ms. Heutsche is an "aggrieved" person within the meaning of 18 U. S. C. § 3504 (a)(1).*fn1 That section
does not restrict its protection to conversations of an accused. It should be liberally construed as it deals with the right of privacy protected by the Fourth Amendment. The conversation of one's lawyer over the telephone may be as helpful to Big Brother as the conversation of the accused herself. The lawyer preparing the defense may in his telephone conversations reveal concessions made by the accused or his trial strategy or clues to the defense which will be proffered that may be extremely helpful to the prosecution. If electronic surveillance were strictly employed by the Executive Branch, we might be chary of enlarging its duties as requested here. But since we live in a regime where the "dirty business" of wiretapping runs rampant, I would apply the statute liberally to check the disease which almost every newspaper tells us has poisoned our body politic.
We are told that in this case the applicant's lawyers did discuss her case with persons other than herself over the telephone. Is Big Brother to have a ringside seat where he can listen to all the confidences of lawyers who defend an accused? If so, what happens to the valued right of counsel protected by the Sixth Amendment?
On June 26, 1972, Margaret Heutsche, the applicant herein, was arrested by the FBI on charges relating to the removal and destruction of Government property from a Selective Service System office. Although a preliminary hearing resulted in a finding of probable cause, she remained free on her own recognizance and heard nothing further on the case until called to testify before a federal grand jury nearly a year later. When she invoked her constitutional right to refrain from testifying, the Government obtained a grant of use immunity pursuant to 18 U. S. C. § 6002 and an order from the District Court compelling the applicant to testify. The
applicant again refused to testify and sought reconsideration of the District Court order, claiming that the subpoena and the questions propounded by the grand jury were the product of illegal electronic surveillance of her and that the Government had not properly affirmed or denied that claim as required by 18 U. S. C. § 3504.*fn2 She claims that the same barrier extends to her lawyer. The applicant also moved for a disclosure of any electronic surveillance of her attorneys and their consultants, and for an evidentiary hearing on the sufficiency of the disclosure.
In response to the motions, the Government filed the affidavit of a high Justice Department official to the effect that, based on an inquiry addressed to seven federal agencies:*fn3
"There has been no electronic surveillance occurring on premises known to have been owned, leased or licensed by Margaret Ann[e] Heutsche.
"The deponent further states that there was no electronic surveillance directed against Margaret Ann[e] Heutsche, per se, and there have been no known overhearings by electronic surveillance, at any location, of ...