Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only attorney general to date to be convicted for illegal activities), began a warrantless wiretapping program, authorized only by the White House and Mitchell, with no oversight and no review by an independent magistrate. A secret program that they claimed was necessary for reasons of national security.

This is part of the complex and ongoing story of United States Executive Branch violations of law, and the role the judiciary has played, or failed to play, to address those illegal and unconstitutional activities. One of the central chapters in this story, to date, involves the efforts of the Department of Justice (DOJ) to force Federal District Court Judge Damon Keith of the Eastern District of Michigan, in the case of United States v. U.S. District Court (the “Keith Case”), to support the Executive’s power to disregard the Constitution and domestic law during a time of war.

The Bombing and Indictments.

The important cases never have easy facts. The progenitor of the Keith Case was United States v. Sinclair. The Sinclair prosecution was based on indictments against White Panther members, John Sinclair, Lawrence (Larry) “Pun” Plamondon and John Waterhouse Forrest for the September 29, 1968 bombing of a CIA office in Ann Arbor, Michigan. After the bombing, Plamondon went underground, traveling to various foreign countries before landing in Algeria. By 1969 he was on the FBI’s 10 Most Wanted list.

The lure of Michigan was too strong for him to stay away, though. He was arrested after being pulled over for throwing beer cans out of his car. In U.S. v. Sinclair, Plamondon was represented by the famous defense lawyer, William Kunstler and the case was assigned to Judge Damon Keith. Early in the case, Kunstler filed a Motion to require the Department of Justice to turn over any electronic surveillance of the defendants, including any illegal surveillance.

That Motion relied in part upon a case decided just a year or so earlier, Alderman v. United States (March 10, 1969), where the Supreme Court had ruled that the government had a duty to turn over illegal surveillance information to the defense.

What the Alderman Case Meant.

In Alderman, the Department of Justice (DOJ) admitted they had engaged in illegal surveillance (not authorized by any warrant), but argued that the court should let the illegal surveillor – DOJ – unilaterally review the surveillance information to determine whether any of the information was “relevant” to their prosecution case. DOJ would not be required to turn over any of the illegal surveillance information unless they made the in-house determination of relevance to the prosecution’s case in chief. .

The Supreme Court response was, roughly translated: Nice try, but no. With that argument shot down, DOJ made a fallback argument. They should only have to provide the surveillance information to a judge for review in camera and only any information that the judge, after review, determined was “arguably relevant” to the criminal case at hand would need to be provided to the defense.

DOJ argued that this process – of blocking defense access – was necessary because of the “potential danger to the reputation or safety of third parties or to the national security.” The Supreme Court was less than impressed by this argument, finding instead that a fair adversary proceeding required the turnover of all the illegal surveillance:

Although this may appear a modest proposal, especially since the standard for disclosure would be “arguable” relevance, we conclude that surveillance records as to which any petitioner has standing to object should be turned over to him without being screened in camera by the trial judge.

…Adversary proceedings are a major aspect of our system of criminal justice. Their superiority as a means for attaining justice in a given case is nowhere more evident than in those cases, such as the ones at bar, where an issue must be decided on the basis of a large volume of factual materials, and after consideration of the many and subtle interrelationships which may exist among the facts reflected by these records. As the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well-informed advocacy necessarily becomes less justifiable.

. . . It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant. (emph. added)

The Illegal Surveillance of Plamondon.

The U.S. Attorney handling the Sinclair case indicated that he was unaware of any such illegal surveillance, but that he would have Main Justice check with the FBI. When the word came back that there had been illegal surveillance of Plamondon, things changed. Based on Alderman, it would seem clear that the information was well on its way to being turned over to the defense. Except that it wasn’t.

The US Attorney did provide surveillance logs to Judge Keith in camera but, despite the Supreme Court recent ruling in Alderman, DOJ argued that Judge Keith could not make the information available to the defendants. The DOJ argued, just as it had (and lost) in Alderman, that there were national security aspects to the case.

So what was new and different? Well, the Government upped the ante over their bid in Alderman in three ways. First, they claimed that the wiretaps were not actually illegal and instead were somehow authorized by exception pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Next, and somewhat overlapping, they argued that even though the wiretaps were on their face warrantless and illegal, there were not, actually illegal because of the so-called “Mitchell Doctrine.” These elements of what the case have received the bulk of the scrutiny and helped form some of the basis for the FISA legislation which Congress later passed. There is another place where the DOJ upped the ante, but we’ll get to that later. For now, let’s look at the arguments.

The Omnibus Crime Control and Safe Streets Act of 1968 Argument.

This argument went something like this. The Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act) spells out how warrants will be handled for criminal cases (including making violations of the warrant requirements of the Omnibus Act a serious crime) except that the Omnibus Act specified an area where it did not apply.

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed 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. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.”

DOJ argued that this exception to coverage was also intended to be a Congressional recognition of, or maybe even a grant to, the President of the power to engage in warrantless wiretaps.

The Mitchell Doctrine Argument.

The Mitchell Doctrine argument went a few steps further. It was based on a claim of inherent power. This Doctrine asserted that the Attorney General, as a representative of the Executive Branch, had the inherent constitutional power to authorize electronic surveillance without a warrant in “national security” cases and to unilaterally determine whether a particular circumstance falls within the scope of a “national security” concern.

The Mitchell Doctrine was the DOJ’s end run around Alderman, but the Sinclair case was not the only case where DOJ was attempting that end run.

While defense lawyers and Judge Damon J. Keith sat open-mouthed, the government tendered an affidavit from the attorney general, John Mitchell — soon to be of Watergate infamy. Mitchell stated in writing that he, on behalf of the president, had the authority to order wiretaps without judicial approval to “protect the nation from attempts of domestic organizations to attack and subvert the government.”

By itself, this case might have been a weird wrinkle in turbulent times. When comparing notes nationally, though, progressive defense lawyers realized there was a pattern. Mitchell had done the same thing in the Chicago 7 / 8 case [internal link] and in a Black Panther trial in California. Something was up. The attorneys came to a conclusion that shocked them: The Justice Department was openly demanding judicial approval of a scheme in which the president alone, without legislative advice or consent, without judicial oversight, decided when the Bill of Rights [internal link] would be suspended, and which citizens’ rights would be overborne. The designation “subversive” would not be defined. “Probable cause,” the ancient Constitutional requirement, would not be shown. The lawyers were aghast not only

at the arrogance of the government’s position. They feared that the government might win. Mitchell’s Justice Department would not have opted for this strategy — no longer denying the illegal bugs, but admitting them, and telling the courts to find them legal — unless they were confident in their position.

… two weeks previously, a Nixon administration official (H.R. Haldeman …) had claimed that the Democrats were giving “aid and comfort to the enemy.” Under the government’s scheme, such a designation would open even the political party out of power to warrantless eavesdropping by whoever held the White House.

As a result of the government’s coordinated, nationwide strategy invoking the Mitchell Doctrine, by the time Judge Keith ruled in the Sinclair case, there were several other cases at various stages including one in the Central District of California, United States v. Smith, where another judge’s ruling was very influential.

[Part II will how the District Court judges dealt with the Mitchell Doctrine in Smith and Sinclair, the curious action of the DOJ in response thereto and the eventual Supreme Court decision.]

  1. R.H. Green says:

    Thank you for this spellbinding report. I’m the edge of my seat wondering when the next installment will come.

  2. michtom says:

    “These elements of what the case have received the bulk”

    Should this be These elements of what the case have received the bulk?

  3. Mary says:

    It’s nice to keep things like this current conviction in the back of your mind while reading these pieces.

    Director gets 1 year in prison in wiretapping case

    Die Hard” director John McTiernan was sentenced to one year in prison Monday for lying about his association with a private investigator to illegally wiretap a movie producer.

    …U.S. District Judge Dale Fischer said he should receive a harsher sentence than the year recommended by prosecutors because he didn’t accept responsibility for his actions.

    “The defendant doesn’t think the law applies to him,” Fischer said.

    “Pun” Plamondon has his own website and a book out, btw.

  4. MadDog says:

    I’ve maintained that for decades the Repug party has been and is an ongoing criminal enterprise. A group of sociopathic serial criminals that are not ashamed of their crimes and never will be.

    Mary’s history lesson today puts the meat on the Repug bones.

    Everytime, every-fookin’-time they get a hold onto power, they break the laws of this country.

    And the argument that the Repugs use in defense?

    What they say is the following:

    “Our opponents are criminalizing policy!”

    But the truth of the matter is that it is they who are:

    “Politicizing criminality!”

    Back in the days of Nixon and Mitchell, the Democrats and the courts would at least put up a fight.

    The Repugs learned from this. Oh, how well they had learned!

    Rather than finding themselves continually serving prison terms for ongoing lawbreaking, the Repugs, under Edwin Meese (another Repug Attorney General who deserved jail time just as much as Mitchell), decided to remove that threat by stocking the Federal judiciary with their criminally-compliant friends who would always rule their way.

    I’ve never been a fan of conspiracy theories, but this is one conspiracy that is no theory! It’s real and it hasn’t stopped.

  5. dipper says:

    Fascinating stuff, Mary. Thanks for writing it so well. Pardon me for not knowing, but did you ever teach law?

    • Mary says:

      Nope – not real law to law school students. Like lots of lawyers who quit doing much law, I have taught some business law or paralegal studies type law, but I’m not really a good teacher when it comes to the “follow a syallabus, cover the chapters, give a test and go” elements.

      @12 Thanks for the links qweryous. There is a lot of story out there and so many fascinating sidelines that you could take. We’re at 3 parts mostly bc I trashed over 1/2 of what I first put down bc there are so many frolic and detours you can take that you get into lots of other issues besides the Keith case issues. I was listening the other day to Feldstein being interviewed about his Jack Anderson book, for example, and the wiretaps of journalists and plots to assassinate journalists have a lot of tie ins. He talks about the assassination plot against Anderson being put on hold for a lot of reasons, but one was that the plumbers were needed for Watergate. And there has always been lots of spec that what the Plumbers were really doing was trying to take existing bugs out rather than put them in, bc the Keith case ruling was leaked to the WH in advance.

      Lots of stories and they all shape where we are today.

  6. b2020 says:


    “witnessing anti-war protests that left students dead and buildings bombed”

    How confusing. The Weathermen killed students? Nobody did – passive voice? No, the protests did? Or did students kill students? Wasn’t there a National Guard somewhere in the mix?

    “witnessing anti-war protests, National Guardsmen shooting protesting students, and extremists that bombed buildings”

    To be really picky on the nit, the Weather Underground went to some length to avoid casualties. The National Guard went to some lengths to create casualties. Not exactly the same thing, and I believe in the grand scheme of things, the latter warrants more concern. Just as governor Reagan, who went on to commit great acts.

    • Mary says:

      Yes – there is quite a bit of compression going on. But if you follow the links, the students killed link is to the National Guard killing students and the building being bombed link didn’t involve the Weathermen (? not sure why you were thinking Weathermen??) it’s a link to the White Panthers bombing of the CIA building.

      The Cold War started earlier, but was definitely still ongoing in the 60s and up to (and kind of into) the detente efforts in 72+ (and is partly why there was so much effort expended to tie Cuba to the antiwar movement.)

      But there is megacompression – especially to the extent of the effort to set a backdrop. It wasn’t intended so much as a backdrop of all the rights and wrongs of the Vietnam war and the war protests, but more so to show that the turmoil, civil unrest, foreign intelligence issues, wars and national security concerns in a comparative sense dwarved some of what we face now. Because of the millions of stories that could be told, the one I’m going to try to tell is one of the many that deal with the warrantless surveillance of the Executive branch and how some courts responded and what thet may mean later.

      You could do a book on almost any link you click on here. On some, you could do(and others have done) 100s.

      • Mason says:

        Yes – there is quite a bit of compression going on. But if you follow the links, the students killed link is to the National Guard killing students and the building being bombed link didn’t involve the Weathermen (? not sure why you were thinking Weathermen??) it’s a link to the White Panthers bombing of the CIA building.

        The New Year’s Gang, a group of four students at the University of Wisconsin in Madison, blew up the Army Math Research Center on campus around 4am killing a graduate student who was inside pulling an all-niter. They didn’t know he was there and didn’t intend to hurt anyone. I was a student at the UW when it happened.

        And, of course, there’s still a lot of hard feelings about the Ohio National Guard firing live ammunition at unarmed students on the campus at Kent State University, killing several of them (four, I think).

        Crosby, Stills, Nash, & Young played a concert at the Dade County Colisseum in Madison a week or so after Kent State. I believe that was the first time they played Ohio in concert. I was there and remember it like yesterday.

        Seemed like the whole world was coming apart.

        Where have the years gone and why are we facing this insanity again?

        EDIT: Should be Dane County, I think.

          • thatvisionthing says:

            Neil Young’s concerts and set lists are at Sugar Mountain:


            Y’all must be talking about July 7, 1970 — Dane County Veterans Memorial Coliseum, Madison, Wisconsin, USA, w/ Crosby, Stills, Nash and Young — but they’d played more than 20 shows before that after Kent St. (May 4, 1970). (They must have debuted “Ohio” at Denver on May 12.) I wish I’d been there. No set list, no recording. Damn.

            He’s also included Ohio on his set list for his current solo Twisted Road tour — several of the performances are up on youtube now. Here’s one.

        • thatvisionthing says:

          This looks like a great thread and I haven’t read it, no time now. But Kent State….

          Seemed like the whole world was coming apart.

          Where have the years gone and why are we facing this insanity again?

          …that’s a big thing with me. When it comes to understanding Kent State I think CSNY had it right — see their Ohio 45 record sleeve here). It was about the Constitution, the First Amendment, the right to assemble and petition government for redress of grievances. But it seems so many people blamed the students — even though it turned out that many of the students were shot in the back, some were bystanders on their way to class, one was an ROTC student, and none were shot at close range making a self-defense argument by guardsmen ludicrous — that it seems like generation gap anger at students and war protesters (the gathering at Kent was in protest of Nixon’s invasion of Cambodia) meant the story was never fully framed in that constitutional way, that the students had a perfect American Constitutional right to assemble and protest Nixon’s unconstitutional invasion of Cambodia. Instead the story became that it was an unfortunate accident, that the National Guard might have gone too far, but not that the National Guard’s presence in the first place was illegitimate. The first news reports that day even said National Guardsmen had been killed — who fed reporters that? My brain is so full on this it’s fritzing my fingers. But damn, my point, CSNY had it right — it was about the Constitution:

          Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

          And because the envelope got pushed back so far then and what happened at Kent State is still not fully understood, now we get “Free Speech Zones” and are supposed to find that a legitimate way to prevent something like another Kent State.

          (I wonder if this is a big thing with Alan Grayson? He gave his Kent State “They can’t kill us all” speech earlier this year, and I understand there’s a new film on him coming out called Street Fighting Man, which I hear was like a student anthem in those days?)

        • thatvisionthing says:

          Crosby, Stills, Nash, & Young played a concert at the Dade County Colisseum in Madison a week or so after Kent State. I believe that was the first time they played Ohio in concert. I was there and remember it like yesterday.

          Mason, what do you remember? About the concert, about Kent State, about the time? Focus wherever, I wasn’t there and I’d like to hear whatever you can tell.

  7. b2020 says:

    “dealing with the cold war and threats of Russian nuclear weapons”

    Wasn’t the 50’s the grand “duck-and-cover” decade? With a “Bomb Korea” campaign and a MacArthur dismissal in the mix. Narrative compression?

    • john in sacramento says:

      What I meant was (pdf warning) EPA vs Mink and how it relates to government secrecy

      In 1971, in connection with planned underground
      nuclear tests at Amchitka Island in the Aleutian
      chain, she filed suit with 32 other Members of
      Congress to compel disclosure of reports under
      the Freedom of Information Act, FOIA. She took
      issue with alleged Presidential authority to exempt
      certain information from FOIA and withhold
      it from judicial or legislative review.


      In EPA v. Mink, the federal
      appeals court ruled for
      Mink and Congress. Senator
      Akaka stated that “the
      case gained tremendous
      historical significance
      when the U.S. Supreme
      Court cited it as precedent
      for the release of the
      Watergate tapes.”

      Following the abuses of the Watergate era, Congress in
      1974 amended the law to narrow the scope of FOIA’s
      law enforcement and national security exemptions.

    • Mary says:

      Oh great – it ties in with part 3 and I probably should revise now. Oh well. I do think they are framing it a bit too all out. It was a specific inquiry under the FOIA, which means that the outs give by FOIA to gov have to be upheld – it’s a statutory (not constitutional) right with a statutory remedy. And the Sup Ct didn’t issue an opinion ok’ing the practice, instead it denied cert. Which it is doing a lot – way too much – in a very very cowardly way. But sometimes denying cert a few times can get you to a better facts case (not that I think this will – but I have to believe that in the military commission or criminal trial proceedings, you have a different (i.e. Constitutional) basis for demanding the wiretap info than you do under FOIA.

      But that’s me trying to keep a positive spin on things. Suzy Sunshine – that’s me.

      Or not.

      • bmaz says:

        Yeah, the FOIA one does not bug me nearly as much as a refusal under crim disclosure inquiry. Remember Glomar, under recent interpretation, now means Executive Branch assertions on FOIA are almost impenetrable.

  8. wayoutwest says:

    Great diary Mary, i had some contact with the WP during this time in Detroit. Their activities brought the full force of the US government down on them.

    The same co-intel tactics are being used today to disrupt any organization that stands up to the government. The difference now is that after 9/11 terrorism is used as a justification and the media and courts are not responding the way they did then.

  9. thatvisionthing says:

    Front paged at Michael Moore right now:

    Prepare to Fire! Audio tape from Kent State, May 4th., 1970.

    Forensic Scientist to Present New Evidence of Command Responsibility for Campus Shootings at Final Kent State Truth Tribunal in New York City; Audio tape pointing to government responsibility to be broadcast live on MichaelMoore.com this weekend

    Kent State: The Death of Innocence and the First Amendment‘; “When the shots were fired, the U.S. government robbed the Kent State students of their right to exercise the First Amendment. It also sent a chilling message to young people across the country: If you protest against the government, you could be killed in the process.” – Laurel Krause, sister of Allison Krause who was killed at Kent State University on May 4th, 1970

    (actually I want to bold the whole thing!)