Nixon Loses, Bush Wins

Nixon lost on the exact same issue that Bush presents. How, then, does Bush, Alberto Gonzales, the Attorney General (and his predecessor John Ashcroft) argue they have the right to do it?
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President Richard Nixon, in 1971, made the same argument as President George W. Bush makes today to justify domestic spying without the need for judicial approval. Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States.

That very argument was litigated all the way to the United States Supreme Court after the Nixon administration lost in the federal district court and the court of appeals for the Sixth Circuit. In its filed brief the Justice Department claimed there were 1,562 bombing incidents in the United States from January 1, 1971 to July 1, 1971, including the bombing of the Capitol building, and that the "seriousness and magnitude, (of these) threats and acts of sabotage against the government exist in sufficient number to justify [these] powers." Robert Mardian, who was later to become a Watergate defendant, argued before the Court on behalf of the government that there was, in effect, an ongoing war within the United States that justified invoking the president's powers as Commander-in-Chief, a power which overrode the privacy rights of American citizens as provided for in the Fourth Amendment to the constitution of the United States.

A unanimous Supreme Court (the vote was 8-0, with Justice Rehnquist recusing himself because he was in the Justice Department legal counsel's office when the domestic spying program was formulated), with Justice Powell writing the opinion, in United States v. U.S. District Court, unambiguously rejected any such notion, articulating a clear-cut admonition to those who would diminish the import of the Fourth Amendment by suggesting that domestic spying at the whim of the president would be permitted under any circumstances.

However, in a single aside, the court noted that previous presidents had engaged in domestic surveillance without securing warrants as part of ongoing efforts to secure foreign intelligence (mainly involving counter-espionage efforts directed against German and Italian embassies and counsulated by the Roosevelt Administration) and that the Court expresses no opinion on such efforts. That opening led to the enactment of Foreign Intelligence Surveillance Act (FISA) in 1978, a bill sponsored by Senator Ted Kennedy of Massachusetts with the blessing of the American Civil Liberties Union. FISA established for the first time in our history a "court" that existed outside the framework of the Fourth Amendment, a secret court that most Americans don't even know exists. It has a single function: to authorize by way of issuing warrants at the request of federal agents, surveillance within the United States on a minimal showing that the target is acting on behalf of a foreign power and that the foreign intelligence to be gathered is necessary for national security. The courtroom itself is in a vault-like chamber, a windowless room on the top floor of the Department of Justice, guarded by military security. There are seven rotating judges. The Court meets in secret, with no published opinions or public records. Nearly all of those spied upon never knew they were under surveillance.

No one, except the FISA judge involved and the Department of Justice knows what is done. No one, except the government and FISA judge knows who the warrants are aimed at. There is no review by anyone, neither the regular federal Appellate Courts nor the Congress, of its decisions. Over 15,000 search warrants, permitting eavesdropping, surveillance and break-ins, have been sought by the government and granted. Although the FISA court is required to determine if there are enough facts to justify a warrant, only eight times has it ever denied a warrant sought by the government. The FISA statute specifically gives the FISA Court the exclusive right to issue domestic spying warrants and that power has been generously exercised. There are more warrants issued by the FISA Court than by the over 1,000 district judges who sit throughout the United States in the Federal system.

Since 1978 every administration has had the FISA court available, but, as far as is known, none have rejected its use when foreign intelligence gathering was necessary. The passage of the Patriot Act in 2001 even made it more accessible and expanded its powers. However, this apparently was not sufficient for the Bush Administration.

What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers.

Nothing that has gone on before in this post 9-11 period, including the Patriot Act, will so drastically alter the rights of Americans to be free of governmental intrusion than a reversal of that landmark decision prohibiting government surveillance without a warrant.

Co-written with Leonard Weinglass. Weinglass was one of the attorneys involved in the Nixon case, U.S. v. U.S. District Court. Martin Garbus is a First Amendment lawyer.

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