Court has made clear warrantless spying is forbidden

BY HUGH (BUCK) DAVIS and ROBERT A. SEDLER, Detroit Free Press

Downplayed in the furor over the revelations that President George W. Bush's National Security Agency is intercepting the telephone and e-mail communications of U.S. citizens is the fact that the Supreme Court has long held that warrantless wiretapping of American citizens in the name of national security violates the Fourth Amendment. The court made that ruling in a 1972 case originating in Michigan. It's popularly known as the Keith case, after highly respected Detroit federal Judge Damon J. Keith, who rendered the initial decision deeming such wiretapping unconstitutional.

That case involved three members of the White Panther Party who were accused of bombing a CIA recruiting office in Ann Arbor in the fall of 1968. The government admitted that there had been warrantless intercepts of the defendants but tried to justify them in the name of national security.

Keith held that the Fourth Amendment prohibited the government from wiretapping U.S. citizens without a warrant and that the government's claim of national security could not override the Constitution. National security or not, the government had to show a federal judge that there was probable cause to justify the wiretap. As Supreme Court Justice Lewis Powell stated in upholding Keith's decision: "If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance."

Quite literally, the decision halted the assault by the Nixon administration on civil liberties, because all of its prosecutions were tainted by this illegal, warrantless, politically motivated wiretapping. Within the next year, the Justice Department dropped all major pending antiwar civil rights conspiracy cases, including those involving such groups as the White Panthers, the Black Panthers and the Weathermen.

That President Richard Nixon failed in his efforts to assert unbridled presidential power was a significant development in the protection of the constitutional rights of all Americans.

Congress followed the Keith case with legislation, most notably the Foreign Intelligence Surveillance Act of 1978, which provided very rapid access to a secret court by government lawyers, including the right to begin the wiretap and then apply for a warrant within 72 hours. The FISA Court has been amazingly accommodating to the Justice Department, denying only four out of about 19,000 applications. Civil libertarians have constantly criticized the court for its secretive nature and willingness to go along with almost any government request, including warrants issued on false evidence. Nonetheless, the fact that the government must get a warrant even from the accommodating FISA Court preserves the structure of constitutional governance in this country.

What then could prompt President Bush to violate blatantly the law and conduct warrantless domestic wiretaps? The obvious implication is that he wanted to do things that even the FISA Court could not stomach. Brazenly, Bush indicates that he will not back down, and the Bush Justice Department is conducting an investigation to find out who "leaked" the information about the wiretaps to the press.

What can be done to stop the president? The fastest and most effective method would be for both parties in both houses of Congress to unequivocally pass legislation that would invalidate the Bush executive order. U.S. Rep. John Conyers, D-Detroit, has introduced resolutions of censure. Discussions of independent hearings have arisen, and the issue was explored in last week's confirmation hearings on Supreme Court nominee Samuel Alito. The more public outrage is brought to bear on Congress, the more likely it will be aggressive on this issue.

HUGH (BUCK) DAVIS was one of the attorneys for the White Panther Party in the Keith case and is a co-founder of Constitutional Litigation Associates in Detroit. ROBERT A. SEDLER is Distinguished Professor of Law at Wayne State University. Write to them in care of the Free Press.