Russo v. Byrne
| Decision Date | 29 July 1972 |
| Docket Number | No. A-150,A-150 |
| Parties | Anthony Joseph RUSSO, Jr., and Daniel Ellsberg, Applicants, v. William Matthew BYRNE, Jr., Judge of the United States District Court for the Central District of California |
| Court | U.S. Supreme Court |
The question raised by this application for stay presents a profoundly important constitutional question not squarely decided by the Supreme Court but ruled upon by the District Court and by the Court of Appeals in a way that is seemingly out of harmony with the import of our decisions.
The electronic surveillance used by the Government was represented to me on oral argument as being in the 'foreign' field. No warrant, as required by the Fourth Amendment and by our decisions, was obtained, only the authorization by the Attorney General. Such authorization was held insufficient in our recent decision in United States v. United States District Court for Eastern District of Michigan, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). It is argued that that case involved 'domestic' surveillance, but the Fourth Amendment and our prior decisions, to date at least, draw no distinction between 'foreign' and 'domestic' surveillance. Whether such a distinction will eventually be made is for the Court, not for me, to make. Moreover, in light of the casual way in which 'foreign' as distinguished from 'domestic' surveillance was used on oral argument it may be that we are dealing only with a question of semantics. Defendants' telephonic communications, it seems, were not tapped, nor were those of their attorney or consultants. But a conversation or several conversations of counsel for defendants were intercepted.
The District Court in an in camera proceeding ruled that those conversations were not relevant to any issues in the present trial. The Court of Appeals, as I read its opinion, ruled that the defendants—i.e., applicants who make this application—have no 'standing' to raise the question. If, however, the interceptions were 'relevant' to the trial, it would seem they would have 'standing.'
Therefore it would seem to follow from the reasoning of the Court of Appeals that whether or not there was 'standing' would turn on the merits. The case, viewed in that posture, would seem to require an adversary hearing on the issue of relevancy. We held, in Alderman v. United States, 394 U.S. 165, 182, 89 S.Ct. 961, 971, 22 L.Ed.2d 176 (1969), that the issue of relevancy should not be resolved in camera, but in an adversary proceeding. Alderman would be greatly undercut if the issue of relevancy could be resolved in camera, and if the trial court ruled against the defendants on the merits and then determined they had no 'standing' to complain.
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