NEW YORK (Jun. 22)
Unless the federal government gives 13 Jewish Defense League leaders, Including national chairman Rabbi Meir Kahane, transcripts of their wiretapped conversations, the gun conspiracy charges against them may have to be dropped, the Jewish Telegraphic Agency learned today. In answering a defense motion that all wiretapped conversations of the defendants be disclosed, the government revealed in U.S. District Court, Brooklyn, last Friday that while there had been no direct electronic surveillance of the phones of any of the defendants, the conversations of 10 of them had been overheard by wiretaps not authorized by court order. According to the government brief, “The President has the power, and the duty, to engage in intelligence-gathering operations which he deems necessary for the conduct of foreign affairs. There exist overriding considerations which militate against imposing the warrant requirement upon the exercise of this power.” The court ordered the government to give the transcripts to the defendants on several bases, including the “substantial probability” that the wiretaps were “illegal.” The government attorney, assistant U.S. Attorney Tom Patterson, replied that he could not hand them over without higher authorization. He was given until Friday to comply with the court order.
According to the government brief, details of which have not been previously published, “10 of the defendants did participate in conversations that were overheard by the federal government in the course of an electronic surveillance authorized by the President, acting through the Attorney General.” But unlike most recent cases–involving antiwar groups, Black Panthers and the Berrigan brothers–the government did not justify its wiretapping on the basis of internal national security. In the JDL case, the government contended that “such surveillance was deemed necessary and essential to protect the nation and its citizens against hostile acts of a foreign power and to obtain information against foreign intelligence activities deemed essential to the security of the United States.” There was no immediate identification of the foreign power nor the nature of “hostile acts.” The government gave the court a sealed envelope containing more than 100 pages of wiretap transcripts, but maintained that “the conversations were unrelated to these cases,” i.e., those of the gun conspiracy charges. The government asked the court to review the transcripts privately to determine whether the taps were legal, in which case the defendants would have no right to see them. In addition, the government stated that “in determining whether or not to employ this intelligence technique the Executive must make a judgment based on various foreign policy considerations.”
In an affidavit accompanying the U.S. brief, Attorney General John N. Mitchell certified that “it would be a practicable impossibility to submit to the court all of the facts, circumstances, and other considerations upon which these authorizations were based.” The government statement added: “The nature of the decision to employ electronic surveillance for such purpose, thus, fall peculiarly within the area of Executive, as distinguished from Judicial, competence. A judge’s experience in assessing ‘probable cause’ in the context of a criminal proceeding would be of little value in determining the need for instituting or maintaining a surveillance designed to obtain foreign intelligence information.” But after reading the transcripts, the court ruled the defendants had a right to see them because there was “substantial probability” that the taps were illegal, that they “led directly” to incriminating evidence obtained by the government, and that they would require the suppression of evidence and the dismissal of charges.” In ordering the disclosure of the taps, the court also hold that “the defendants would not be able to conduct a meaningful defense without access” to them.