Pivotal Michigan Case Decided Wiretaps Must Be Approved

December 22, 2005

Judge Damon Keith ruling was key in establishing legal precedent

The 214th anniversary of the ratification of the Bill of Rights this past week is an appropriate time to remember that protecting constitutional freedoms lies at the heart and soul of this country.

Last week President George W. Bush acknowledged, after the story broke in the New York Times, that he had secretly authorized wiretaps on at least 500 people since 2002, many of whom had done nothing more than protest the U.S. war in Iraq. Simply by issuing a National Security Letter, the FBI has forced Internet service providers, universities and other institutions to turn over customer records. When done without a court order, this kind of eavesdropping is both unconstitutional and illegal under the Foreign Intelligence Surveillance Act.

The ACLU has learned even more through Freedom of Information Act requests on behalf of over 150 domestic political and religious groups in over 20 states. The documents we have obtained confirm that the FBI is using its counterterrorism resources to monitor and infiltrate peaceful activist groups.

The nation's capital is reeling with news that the Senate had rebuked the White House and its allies who had tried to force through reauthorization of the USA Patriot Act. One of the most controversial provisions of the act allows the government to go to a secret court to obtain warrants to obtain library, financial, business, medical and other records.

But the president's unauthorized wiretapping shows ambitions that go far beyond the Patriot Act because the president never went to any court before authorizing them.

Presidents have long wanted to circumvent the courts to spy on United States citizens. President Bush is certainly not the first. However, the legality for doing so was settled back in 1972 by the U.S. Supreme Court in a very important case that originated in Michigan.

In that case, the Nixon administration's Justice Dept. charged three defendants with conspiring to destroy, and one of them with destroying, an office of the Central Intelligence Agency in Ann Arbor. In response to the defendants' pretrial motion to disclose electronic surveillance information, U.S. Attorney General John Mitchell stated in an affidavit that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the government." The government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security.

Detroit's Federal Judge Damon J. Keith ruled that wiretapping without a warrant is a violation of the U.S. Constitution. His decision was upheld by the Supreme Court, which observed:

"History abundantly documents the tendency of Government -- however benevolent and benign its motives -- to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. 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.'"

Judge Keith stepped forward again to stop the current administration when he ruled in an ACLU case that the Justice Department could not close all deportation hearings to the press and public. He found that there is no "national security" exception to the First Amendment right of the public and the press to attend a legal proceeding.

But for the press, we might never have learned about these secret wiretaps. But for the courts and Congress, we would live in a country in which one person, the president, could wield extraordinary powers at will.

Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power between the executive branch, the legislative branch, and the judicial branch to ensure that no single branch becomes too powerful. No one person is beneath the law's protection -- no one person is above the law's limits.

It is time for Congress to show a nonpartisan commitment to the rule of law by insisting that the Department of Justice appoint a special counsel to determine if oaths of office were broken or federal laws violated.

Our system of checks and balances must be maintained if American democracy is to be preserved. Unchecked secret domestic spying is wrong whether you are a Democrat or a Republican.

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