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Full Opinion
MITCHELL
v.
FORSYTH
Supreme Court of United States.
*512 Deputy Solicitor General Bator argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Samuel A. Alito, Jr., Barbara L. Herwig, Gorden W. Daiger, and Larry L. Gregg.
*513 David Rudovsky argued the cause for respondent. With him on the brief was Michael Avery.
JUSTICE WHITE delivered the opinion of the Court.
This is a suit for damages stemming from a warrantless wiretap authorized by petitioner, a former Attorney General of the United States. The case presents three issues: whether the Attorney General is absolutely immune from suit for actions undertaken in the interest of national security; if not, whether the District Court's finding that petitioner is not immune from suit for his actions under the qualified immunity standard of Harlow v. Fitzgerald, 457 U. S. 800 (1982), is appealable; and, if so, whether the District Court's ruling on qualified immunity was correct.
I
In 1970, the Federal Bureau of Investigation learned that members of an antiwar group known as the East Coast Conspiracy to Save Lives (ECCSL) had made plans to blow up heating tunnels linking federal office buildings in Washington, D. C., and had also discussed the possibility of kidnaping then National Security Adviser Henry Kissinger. On November 6, 1970, acting on the basis of this information, the then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor who was a member of the group. According to the Attorney General, the purpose of the wiretap was the gathering of intelligence in the interest of national security.
The FBI installed the tap in late November 1970, and it stayed in place until January 6, 1971. During that time, the Government intercepted three conversations between Davidon and respondent Keith Forsyth. The record before us does not suggest that the intercepted conversations, which appear to be innocuous, were ever used against Forsyth in any way. Forsyth learned of the wiretap in 1972, when, as a criminal defendant facing unrelated charges, he moved under *514 18 U. S. C. § 3504 for disclosure by the Government of any electronic surveillance to which he had been subjected. The Government's response to Forsyth's motion revealed that although he had never been the actual target of electronic surveillance, he "did participate in conversations that are unrelated to this case and which were overheard by the Federal Government during the course of electronic surveillance expressly authorized by the President acting through the Attorney General." App. 20-21. The Government's response was accompanied by an affidavit, sworn to by then Attorney General Richard Kleindienst, averring that the surveillance to which Forsyth had been subjected was authorized "in the exercise of [the President's] authority relating to the national security as set forth in 18 U. S. C. 2511(3)." Id., at 23.[1]
Shortly thereafter, this Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps *515 in cases involving domestic threats to the national security. United States v. United States District Court, 407 U. S. 297 (1972) (Keith). In the wake of the Keith decision, Forsyth filed this lawsuit against John Mitchell and several other defendants in the United States District Court for the Eastern District of Pennsylvania. Forsyth alleged that the surveillance to which he had been subjected violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§ 2510-2520, which sets forth comprehensive standards governing the use of wiretaps and electronic surveillance by both governmental and private agents. He asserted that both the constitutional and statutory provisions provided him with a private right of action; he sought compensatory, statutory, and punitive damages.
Discovery and related preliminary proceedings dragged on for the next five-and-a-half years. By early 1978, both Forsyth and Mitchell had submitted motions for summary judgment on which the District Court was prepared to rule. Forsyth contended that the uncontested facts established that the wiretap was illegal and that Mitchell and the other defendants were not immune from liability; Mitchell contended that the decision in Keith should not be applied retroactively to the wiretap authorized in 1970 and that he was entitled either to absolute prosecutorial immunity from suit under the rule of Imbler v. Pachtman, 424 U. S. 409 (1976), or to qualified or "good faith" immunity under the doctrine of Wood v. Strickland, 420 U. S. 308 (1975).
The court found that there was no genuine dispute as to the facts that the FBI had informed Mitchell of the ECCSL's plots, that Mitchell had authorized the warrantless tap on Davidon's phone, and that the ostensible purpose of the tap was the gathering of intelligence in the interest of national security. Such a wiretap, the court concluded, was a clear violation of the Fourth Amendment under Keith, which, in *516 the court's view, was to be given retroactive effect. The court also rejected Mitchell's claim to absolute immunity from suit under Imbler v. Pachtman: Imbler, the court held, provided absolute immunity to a prosecutor only for his acts in "initiating and pursuing a criminal prosecution"; Mitchell's authorization of the wiretap constituted the performance of an investigative rather than prosecutorial function. Forsyth v. Kleindienst, 447 F. Supp. 192, 201 (1978). Although rejecting Mitchell's claim of absolute immunity, the court found that Mitchell was entitled to assert a qualified immunity from suit and could prevail if he proved that he acted in good faith. Applying this standard, with its focus on Mitchell's state of mind at the time he authorized the wiretap, the court concluded that neither side had met its burden of establishing that there was no genuine issue of material fact as to Mitchell's good faith. Accordingly, the court denied both parties' motions for summary judgment. Id., at 203.
Mitchell appealed the District Court's denial of absolute immunity to the United States Court of Appeals for the Third Circuit, which remanded for further factfinding on the question whether the wiretap authorization was "necessary to [a]. . . decision to initiate a criminal prosecution" and thus within the scope of the absolute immunity recognized in Imbler v. Pachtman. Forsyth v. Kleindienst, 599 F. 2d 1203, 1217 (1979). On remand, the District Court held a hearing on the question whether the wiretap served a prosecutorial purpose. On the basis of the hearing and the evidence in the record, the court concluded that Mitchell's authorization of the wiretap was not intended to facilitate any prosecutorial decision or further a criminal investigation. Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes. Taking Mitchell at his word in this regard, the court held to its conclusion that he was not entitled to absolute prosecutorial immunity.
*517 At the same time, the court reconsidered its ruling on qualified immunity in light of Harlow v. Fitzgerald, 457 U. S. 800 (1982), in which this Court purged qualified immunity doctrine of its subjective components and held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id., at 818. The District Court rejected Mitchell's argument that under this standard he should be held immune from suit for warrantless national security wiretaps authorized before this Court's decision in Keith: that decision was merely a logical extension of general Fourth Amendment principles and in particular of the ruling in Katz v. United States, 389 U. S. 347 (1967), in which the Court held for the first time that electronic surveillance unaccompanied by physical trespass constituted a search subject to the Fourth Amendment's warrant requirement. Mitchell and the Justice Department, the court suggested, had chosen to "gamble" on the possibility that this Court would create an exception to the warrant requirement if presented with a case involving national security. Having lost the gamble, Mitchell was not entitled to complain of the consequences.[2] The court therefore denied Mitchell's motion for summary judgment, granted Forsyth's motion for summary judgment on the issue of liability, and scheduled further proceedings on the issue of damages. Forsyth v. Kleindienst, 551 F. Supp. 1247 (1982).
Mitchell again appealed, contending that the District Court had erred in its rulings on both absolute immunity and qualified immunity. Holding that it possessed jurisdiction to decide the denial of absolute immunity issue despite the fact *518 that it was a pretrial order and arguably not a final judgment,[3] the Court of Appeals rejected Mitchell's argument that the national security functions of the Attorney General entitled him to absolute immunity under Imbler v. Pachtman or otherwise. With respect to the denial of qualified immunity, the Court of Appeals held that the District Court's order was not appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). Fearing that allowing piecemeal appeals of such issues would unduly burden appellate courts, the court was unwilling to hold that the goal of protecting officials against frivolous litigation required that orders denying qualified immunity be immediately appealable. Forsyth's claim, the court noted, was not a frivolous one, and the policies underlying the immunity doctrine would therefore not be frustrated if Mitchell were forced to wait until final judgment to appeal the qualified immunity ruling.[4]Forsyth v. Kleindienst, 729 *519 F. 2d 267 (1984). The court therefore remanded the case to the District Court for further proceedings leading to the entry of final judgment, and Mitchell filed a timely petition for certiorari seeking review of the court's rulings on both absolute and qualified immunity.
The question whether the Attorney General is absolutely immune from suit for acts performed in the exercise of his national security functions is an important one that we have hitherto left unanswered. See Halperin v. Kissinger, 196 U. S. App. D. C. 285, 606 F. 2d 1192 (1979), aff'd by an equally divided Court, 452 U. S. 713 (1981). Moreover, the issue of the appealability before final judgment of orders denying immunity under the objective standard of Harlow v. Fitzgerald is one that has divided the Courts of Appeals.[5] Finally, the District Court's decision left standing by the Court of Appeals that Mitchell's actions violated clearly established law is contrary to the rulings of the District of Columbia Circuit in Sinclair v. Kleindienst, 207 U. S. App. D. C. 155, 645 F. 2d 1080 (1981), and Zweibon v. Mitchell, 231 U. S. App. D. C. 398, 720 F. 2d 162 (1983), cert. denied, *520 469 U. S. 880 (1984). We granted certiorari to address these issues, 469 U. S. 929 (1984).
II
We first address Mitchell's claim that the Attorney General's actions in furtherance of the national security should be shielded from scrutiny in civil damages actions by an absolute immunity similar to that afforded the President, see Nixon v. Fitzgerald, 457 U. S. 731 (1982), judges, prosecutors, witnesses, and officials performing "quasi-judicial" functions, see Briscoe v. LaHue, 460 U. S. 325 (1983); Butz v. Economou, 438 U. S. 478, 508-517 (1978); Stump v. Sparkman, 435 U. S. 349 (1978); Imbler v. Pachtman, 424 U. S. 409 (1976), and legislators, see Dombrowski v. Eastland, 387 U. S. 82 (1967); Tenney v. Brandhove, 341 U. S. 367 (1951). We conclude that the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.
As the Nation's chief law enforcement officer, the Attorney General provides vital assistance to the President in the performance of the latter's constitutional duty to "preserve, protect, and defend the Constitution of the United States." U. S. Const., Art. II, § 1, cl. 8. Mitchell's argument, in essence, is that the national security functions of the Attorney General are so sensitive, so vital to the protection of our Nation's well-being, that we cannot tolerate any risk that in performing those functions he will be chilled by the possibility of personal liability for acts that may be found to impinge on the constitutional rights of citizens. Such arguments, "when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration." Keith, 407 U. S., at 319. Nonetheless, we do not believe that the considerations that have led us to recognize absolute immunities for other officials dictate the same result in this case.
*521 Our decisions in this area leave no doubt that the Attorney General's status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity: the considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President of the United States do not demand a similar immunity for Cabinet officers or other high executive officials. See Harlow v. Fitzgerald, 457 U. S. 800 (1982); Butz v. Economou, supra. Mitchell's claim, then, must rest not on the Attorney General's position within the Executive Branch, but on the nature of the functions he was performing in this case. See Harlow v. Fitzgerald, supra, at 810-811. Because Mitchell was not acting in a prosecutorial capacity in this case, the situations in which we have applied a functional approach to absolute immunity questions provide scant support for blanket immunization of his performance of the "national security function."
First, in deciding whether officials performing a particular function are entitled to absolute immunity, we have generally looked for a historical or common-law basis for the immunity in question. The legislative immunity recognized in Tenney v. Brandhove, supra, for example, was rooted in the long struggle in both England and America for legislative independence, a presupposition of our scheme of representative government. The immunities for judges, prosecutors, and witnesses established by our cases have firm roots in the common law. See Briscoe v. LaHue, supra, at 330-336. Mitchell points to no analogous historical or common-law basis for an absolute immunity for officers carrying out tasks essential to national security.
Second, the performance of national security functions does not subject an official to the same obvious risks of entanglement in vexatious litigation as does the carrying out of the judicial or "quasi-judicial" tasks that have been the primary wellsprings of absolute immunities. The judicial process is an arena of open conflict, and in virtually every case there is, if not always a winner, at least one loser. It is inevitable *522 that many of those who lose will pin the blame on judges, prosecutors, or witnesses and will bring suit against them in an effort to relitigate the underlying conflict. See Bradley v. Fisher, 13 Wall. 335, 348 (1872). National security tasks, by contrast, are carried out in secret; open conflict and overt winners and losers are rare. Under such circumstances, it is far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation.[6] Whereas the mere threat of litigation may significantly affect the fearless and independent performance of duty by actors in the judicial process, it is unlikely to have a similar effect on the Attorney General's performance of his national security tasks.
Third, most of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help to prevent abuses of authority from going unredressed. Legislators are accountable to their constituents, see Tenney v. Brandhove, supra, at 378, and the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need *523 for damages actions to prevent unjust results. Similar builtin restraints on the Attorney General's activities in the name of national security, however, do not exist. And despite our recognition of the importance of those activities to the safety of our Nation and its democratic system of government, we cannot accept the notion that restraints are completely unnecessary. As the Court observed in Keith, the label of "national security" may cover a multitude of sins:
"National security cases . . . often reflect a convergence of First and Fourth Amendment values not present in cases of `ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. . . . History abundantly documents the tendency of Government however, benevolent and benign its motives to view with suspicion those who most fervently dispute its policies. . . . The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect `domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent." 407 U. S., at 313-314.
The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.[7]
*524 We emphasize that the denial of absolute immunity will not leave the Attorney General at the mercy of litigants with frivolous and vexatious complaints. Under the standard of qualified immunity articulated in Harlow v. Fitzgerald, the Attorney General will be entitled to immunity so long as his actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U. S., at 818. This standard will not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: "Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate . . . ." Id., at 819 (emphasis added). This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.
III
Although 28 U. S. C. § 1291 vests the courts of appeals with jurisdiction over appeals only from "final decisions" of the district courts, "a decision `final' within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case." Gillespie v. United States Steel Corp., 379 U. S. 148, 152 (1964). Thus, a decision of a district court is appealable if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that *525 appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U. S., at 546.
A major characteristic of the denial or granting of a claim appealable under Cohen's "collateral order" doctrine is that "unless it can be reviewed before [the proceedings terminate], it never can be reviewed at all." Stack v. Boyle, 342 U. S. 1, 12 (1952) (opinion of Jackson, J.); see also United States v. Hollywood Motor Car Co., 458 U. S. 263, 266 (1982). When a district court has denied a defendant's claim of right not to stand trial, on double jeopardy grounds, for example, we have consistently held the court's decision appealable, for such a right cannot be effectively vindicated after the trial has occurred. Abney v. United States, 431 U. S. 651 (1977).[8] Thus, the denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action. See Nixon v. Fitzgerald, 457 U. S. 731 (1982); cf. Helstoski v. Meanor, 442 U. S. 500 (1979).
At the heart of the issue before us is the question whether qualified immunity shares this essential attribute of absolute immunity whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances. The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U. S. 800 (1982), is that "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken `with independence and without fear of consequences.' " Id., at 819, quoting Pierson v. Ray, 386 U. S. 547, 554 (1967). As the citation to *526 Pierson v. Ray makes clear, the "consequences" with which we were concerned in Harlow are not limited to liability for money damages; they also include "the general costs of subjecting officials to the risks of trial distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Harlow, 457 U. S., at 816. Indeed, Harlow emphasizes that even such pretrial matters as discovery are to be avoided if possible, as "[i]nquiries of this kind can be peculiarly disruptive of effective government." Id., at 817.
With these concerns in mind, the Harlow Court refashioned the qualified immunity doctrine in such a way as to "permit the resolution of many insubstantial claims on summary judgment" and to avoid "subject[ing] government officials either to the costs of trial or to the burdens of broadreaching discovery" in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Id., at 817-818. Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. See id., at 818. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates *527 to us that the denial of qualified immunity should be similarly appealable: in each case, the district court's decision is effectively unreviewable on appeal from a final judgment.
An appealable interlocutory decision must satisfy two additional criteria: it must "conclusively determine the disputed question," Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978), and that question must involve a "clai[m] of right separable from, and collateral to, rights asserted in the action," Cohen, supra, at 546. The denial of a defendant's motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements. Such a decision is "conclusive" in either of two respects. In some cases, it may represent the trial court's conclusion that even if the facts are as asserted by the defendant, the defendant's actions violated clearly established law and are therefore not within the scope of the qualified immunity. In such a case, there will be nothing in the subsequent course of the proceedings in the district court that can alter the court's conclusion that the defendant is not immune. Alternatively, the trial judge may rule only that if the facts are as asserted by the plaintiff, the defendant is not immune. At trial, the plaintiff may not succeed in proving his version of the facts, and the defendant may thus escape liability. Even so, the court's denial of summary judgment finally and conclusively determines the defendant's claim of right not to stand trial on the plaintiff's allegations, and because "[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred," it is apparent that "Cohen's threshold requirement of a fully consummated decision is satisfied" in such a case. Abney v. United States, 431 U. S., at 659.
Similarly, it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff's claim *528 that his rights have been violated. See id., at 659-660. An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court had denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.[9] To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff's claim for relief; the same is true, however, when a court must consider whether a prosecution is barred by a claim of former jeopardy or whether a Congressman is absolutely immune from suit because the complained of conduct falls within the protections of the Speech and Debate Clause. In the case of a double jeopardy claim, the court must compare the facts alleged in the second indictment with those in the first to determine whether the prosecutions are for the same offense, while in evaluating a claim of immunity under the Speech and Debate Clause, a court must analyze the plaintiff's complaint to determine whether the plaintiff seeks to hold a Congressman liable for protected legislative actions or for other, unprotected conduct. In holding these and similar issues of absolute immunity to be appealable under the collateral order doctrine, see Abney v. United States, supra; Helstoski v. Meanor, 442 U. S. 500 (1979); Nixon v. Fitzgerald, 457 U. S. 731 (1982), the Court has recognized that a question of immunity is separate from the merits of the underlying action for purposes of *529 the Cohen test even though a reviewing court must consider the plaintiff's factual allegation in resolving the immunity issue.[10]
*530 Accordingly, we hold that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable "final decision" within the meaning of 28 U. S. C. § 1291 notwithstanding the absence of a final judgment.
IV
The Court of Appeals thus had jurisdiction over Mitchell's claim of qualified immunity, and that question was one of the question presented in the petition for certiorari which we granted without limitation. Moreover, the purely legal question on which Mitchell's claim of immunity turns is "appropriate for our immediate resolution" notwithstanding that it was not addressed by the Court of Appeals. Nixon v. Fitzgerald, supra, at 743, n. 23. We therefore turn our attention to the merits of Mitchell's claim of immunity.
Under Harlow v. Fitzgerald, Mitchell is immune unless his actions violated clearly established law. See 457 U. S., at 818-819; see also Davis v. Scherer, 468 U. S. 183, 197 (1984). Forsythia complains that in November 1970, Mitchell authorized a warrant less wiretap aimed at gathering intelligence regarding a domestic threat to national security the kind of wiretap that the Court subsequently declared to be illegal. Keith, 407 U. S. 297 (1972). The question of Mitchell's immunity turns on whether it was clearly established in November 1970, well over a year before Keith was decided, that such wiretaps were unconstitutional. We conclude that it was not.
The use of warrantless electronic surveillance to gather intelligence in cases involving threats to the Nation's security can be traced back to 1940, when President Roosevelt instructed Attorney General Robert Jackson that he was authorized to approve wiretaps of persons suspected of subversive *531 activities. In 1946, President Truman's approval of Attorney General Tom Clark's request for expanded wiretapping authority made it clear that the Executive Branch perceived its authority to extend to cases involving "domestic security." See Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance 36 (1976). Attorneys General serving Presidents Eisenhower, Kennedy, Johnson, and Nixon continued the practice of employing warrant less electronic surveillance in their efforts to combat perceived threats to the national security, both foreign and domestic. See Keith, supra, at 310-311, n. 10.
Until 1967, it was anything but clear that these practices violated the Constitution: the Court had ruled in Olmstead v. United States, 277 U. S. 438 (1928), that a wiretap not involving a physical trespass on the property of the person under surveillance was not a search for purposes of the Fourth Amendment, and although the rule in Olmstead had suffered some erosion, see Silverman v. United States, 365 U. S. 505 (1961), the Court had never explicitly disavowed it. Not until 1967 did the Court hold that electronic surveillance unaccompanied by any physical trespass constituted a search subject to the Fourth Amendment's restrictions, including the Warrant Clause. Katz v. United States, 389 U. S. 347. Yet the Katz Court recognized that warrantless searches do not in all circumstances violate the Fourth Amendment; and though the Court held that no recognized exception to the warrant requirement could justify warrantless wiretapping in an ordinary criminal case, the Court was careful to note that "[w]hether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case." Id., at 358, n. 23. In separate concurrences, Members of the Court debated the question whether the President or the Attorney General could constitutionally authorize warrantless wiretapping in the interest of national security. Compare id., at 359-360 (Douglas, J., joined by *532 BRENNAN, J., concurring), with id., at 362-364 (WHITE, J., concurring).
In the aftermath of Katz, Executive authority to order warrantless national security wiretaps remained uncertain. This uncertainty found expression in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, in which Congress attempted to fashion rules governing wiretapping and electronic surveillance that would "meet the constitutional requirements for electronic surveillance enunciated by this Court in Berger v. New York, 388 U. S. 41 (1967), and Katz v. United States, 389 U. S. 347 (1967)." Keith, supra, at 302. Although setting detailed standards governing wiretapping by both state and federal law enforcement agencies, the Act disclaimed any intention "to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." 18 U. S. C. § 2511(3) (1976 ed.). As subsequently interpreted by this Court in Keith, this provision of the Act was an "expression of neutrality,"