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Police State USA
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01/08/06, San Francisco Chronicle
SPY POWERS
Can
the president eavesdrop on private citizens without a judge's
ok? The high court said 'no' in 1972 Wiretaps: Ruling requires
warrants for spying at home
Bob Egelko, Chronicle Staff
Writer
More...
Thirty-five years ago, President
Richard Nixon claimed constitutional authority to wiretap
Americans' phone calls to protect national security without
asking a judge -- the same assertion that President Bush is
making today in the name of fighting terrorism.
The
Supreme Court ruled unanimously against Nixon, saying the
Constitution granted the powers he was claiming to judges, not
presidents. If the current court eventually reconsiders that
1972 ruling, it may affect the fate of Bush's decision to
authorize the National Security Agency to wiretap calls
between Americans and alleged al Qaeda suspects in foreign
countries.
Presidents have approved wiretaps without
court orders since the 1940s, but the legality of the practice
was thrown into doubt after the Supreme Court ruled in 1967
that electronic eavesdropping was a search, and thus covered
by the prohibition on unreasonable searches in the
Constitution's Fourth Amendment.
The case Nixon chose
as a test of presidential authority arose during a turbulent
period, in circumstances that must have seemed to favor the
government: the prosecution of members of the radical White
Panthers on charges of bombing a CIA office in Ann Arbor,
Mich., in 1968.
The prosecution's evidence included
phone conversations by one defendant, Lawrence "Pun"
Plamondon, whom federal agents had taped without a warrant on
the authority of Nixon's attorney general, John Mitchell.
In defense of its conduct, the administration
submitted a sworn statement in 1971 from Mitchell saying
agents needed to conduct the surveillance to protect the
nation from "attempts of domestic organizations to attack and
subvert the existing structure of the government.'' The
administration said there had been 1,562 bombing incidents in
the United States in the first half of 1971, most of which
involved government buildings.
The arguments did not
sway the Supreme Court, which ruled 8-0 that the wiretaps
exceeded the president's constitutional power.
The
freedoms protected by the Fourth Amendment "cannot properly be
guaranteed if domestic security surveillance may be conducted
solely within the discretion of the executive branch,'' wrote
Justice Lewis Powell, a Nixon appointee.
"Fourth
Amendment protections become more necessary when the targets
of official surveillance may be those suspected of unorthodoxy
in their political beliefs,'' Powell said.
The ruling
led prosecutors to drop the White Panther case and, in
conjunction with a Senate committee's later revelations of
government spying on dissidents, drove Congress to pass the
Foreign Intelligence Surveillance Act in 1978.
That
law established a court, appointed by the chief justice, to
meet in secret and issue warrants for searches and wiretaps
related to foreign terrorism and spying, under more relaxed
standards than the ones judges use for ordinary search
warrants. Bush, however, has asserted the power to bypass the
court and authorize wiretaps for foreign intelligence purposes
in a series of orders since 2002.
The president claims
two sources of legal authority: Congress' post-Sept. 11, 2001,
resolution authorizing him to use force to repel terrorist
threats, and his inherent constitutional power over military
and foreign policy matters.
The standards that the
court set for future cases in its 1972 ruling don't resolve
either of those claims. The court did not anticipate a law
such as the use-of-force resolution, although the justices
rejected a similar argument by the Nixon administration that
the existing wiretap law allowed the president to order
surveillance for national security.
As for the
constitutional issue, Powell's opinion specified that the
court was considering only the president's authority over
domestic security, and was expressing no view about foreign
intelligence.
But two lawyers who opposed Nixon in the
case say the issues today are virtually identical.
The
1972 ruling "makes clear that the warrant requirement applies
to all searches within the United States, even if the
president alleges that it's an intelligence search,'' said
Abraham Sofaer, a senior fellow at the conservative Hoover
Institution on the Stanford University campus. Sofaer, as a
Columbia University law professor, wrote the main brief
challenging the wiretap, later served as a federal judge and
then became the chief legal adviser to the State Department
under President Ronald Reagan.
Although the case
involved domestic surveillance, the court made it clear that
"there's no inherent power to eavesdrop for foreign
intelligence purposes within the United States,'' Sofaer said.
A liberal law professor, Herman Schwartz of American
University, said the Bush administration was offering the same
arguments that Nixon advanced in 1972: that the president has
broad powers to protect the nation, and that national security
surveillance requires more speed, secrecy and technical
competence than judges are capable of providing.
Although today's scenario is different, "the threats
(described by the government) are the same, and the claims are
the same,'' said Schwartz, who filed written arguments for the
American Civil Liberties Union in 1972. As in the earlier
case, he said, "there's a danger that this (wiretapping) will
be used to check on people who are simply protesting.''
Other liberal lawyers were less confident that the
1972 ruling could be used to scuttle Bush's program.
Cass Sunstein, a University of Chicago constitutional
scholar, said the Supreme Court had not ruled out presidential
authority over international surveillance, and lower federal
courts since 1972 have upheld comparable claims of
presidential power.
David Cole, a Georgetown law
professor and lawyer for the Center for Constitutional Rights,
told The Chronicle that the 1972 case was potentially helpful
to those who might challenge Bush but wouldn't settle the
issue.
In a recent article in Salon.com, Cole said a
clearer precedent was the Supreme Court's 1952 ruling
rejecting a wartime claim of inherent presidential power --
Harry Truman's attempt to seize most of the nation's steel
mills during the Korean War.
Truman, citing his powers
as commander-in-chief of the armed forces, had claimed the
federal takeover was essential to the war effort because a
nationwide steel strike was threatening the supply of
munitions.
But the court said the president had no
power to defy Congress, which had refused to authorize
presidential seizure of strike-bound industries.
Similarly, Cole argued, Bush's wiretap program defies
Congress' refusal in passing the Foreign Intelligence
Surveillance Act to allow government wiretaps without a
warrant.
On the other hand, some of Bush's defenders
contend the Supreme Court's 1972 ruling strengthens the
president's position.
John Eastman, a law professor at
Chapman University in Orange County and director of the
Claremont Institute's Center for Constitutional Jurisprudence,
said the Supreme Court's chief rationale in 1972 for rejecting
the government's wiretaps -- that they could be used against
dissidents, not just criminals -- would be less compelling in
an international case.
"The distinction between war
powers and domestic authority is a strong one,'' Eastman said.
"There's a much greater risk to free speech when (the
president is) eavesdropping on domestic groups.''
He
pointed to a footnote in the 1972 ruling that cited a lower
court decision saying a presidential wiretap order might be
constitutional for foreign intelligence even if the same order
would be invalid for domestic eavesdropping. Although that
decision reached no conclusion, Eastman said the Supreme
Court's uncritical reference to it could be read as a
suggestion that the president has such powers, and if so,
"Congress couldn't limit him.''
The Supreme Court
ruling is United States vs. U.S. District Court, 407 U.S. 297.
E-mail Bob Egelko at begelko@sfchronicle.com
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