Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 2

[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. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

But back to Judge Keith’s case. After invoking a striking image, the “uninvited ear” Judge Keith goes on to side with Judge Ferguson and make his own indelible contribution.

In this turbulent time of unrest, it is often difficult for the established and contented members of our society to tolerate, much less try to understand, the contemporary challenges to our existing form of government. If democracy as we know it, and as our forefathers established it, is to stand, then “attempts of domestic organizations to attack and subvert the existing structure of the Government” (see affidavit of Attorney General), cannot be, in and of themselves, a crime.

The DOJ Files Against Judge Keith

Rather than complying with Judge Keith’s order, the DOJ insisted it was right and would not turn over the information. It was not at a juncture where it could appeal, so it filed a mandamus action against Judge Keith, asking superior courts to order that the Judge turn over the surveillance logs and not disclose them to the defendants. A mandamus action exists when an officer or lower court is refusing to do something where it has a clear duty. Here, DOJ was claiming that the clear duty was to return the logs to DOJ and not disclose them (we’ll come back to this – but this is the state’s secret aspect of the Keith case).

Now, the Executive branch had used its prosecutorial power to make Judge Keith a defendant and it looked to the Sixth Circuit to rein in the District Court Judge. The Sixth Circuit, however, sided with Judge Keith.  The scene was set for a truly remarkable case to be heard by the Supreme Court.

DOJ Searches for a Good Argument While the Supreme Court Takes the Case.

Now that the DOJ was going before the Supreme Court, it had several difficulties – one of the foremost being just what argument it really wanted to sell hardest to the Court. It wanted to argue that of course the President could do “anything” when national security was involved, but it didn’t really want to argue forthrightly that the President was exempt from law. Except, it was willing to make that argument if it had to – but it didn’t want to have to. All of which made for a curious dance leading up to the filings and oral argument in the case.

The Supreme Court had two new members when the case went up, Justices Rehnquist and Powell. Justice Rehnquist (who had been working on the surveillance case briefs from the DOJ’s Office of Legal Counsel) recused. Justice Powell, though, was largely seen as being a “win” for the Government’s case, having written aggressively in favor of the Executive’s power in national security settings. And since the lower courts and Justice Powell had both seemed favorably inclined to find that there was power to wiretap foreign powers, DOJ tried to pull in foreign power aspects to the case as well.

As reported in March 6, 1972 Time article titled, ” The Law: Turmoil on Taps

The tap was perfectly legal, [DOJ] said, even though it had been installed without a judicial warrant, because warrants are not necessary in cases involving a threat to “national security.” This is true not only for the traditional danger from a foreign power, the Justice Department maintains, but also for the security threat posed by the current radical protest movement.

In his argument to the Supreme Court last week, U.S. Solicitor General Erwin Griswold (sic) insisted that radical protests within the U.S. are “interrelated” with security threats from abroad. The Government was merely gathering intelligence to protect the nation, he said, not deliberately seeking evidence for criminal prosecutions. If each case had to be submitted to a judge to get a warrant, Griswold added, “the Government would have to disclose sensitive and highly secret information.” Judges, he said, are not as qualified as the Attorney General to make the “subtle inferences” involved. Even though the Attorney General might abuse his power, that “is not a valid basis for denying [him] the authority.” emph added

The Time’s article reference to Griswold, above, is incorrect. The Solicitor General , a former Harvard law dean (but otherwise unlike an Elena Kagan) actually refused to argue the case although his name was on the briefs. Not having a Paul Clement available, Robert C. Mardian was asssigned to handle the arguments. So, while no one knew it at the time, both the Attorney General (Mitchell) who authorized the illegal taps and the deputy Solicitor General, Mardian, who argued the case to the court, would later become indicted in matters relating to the Watergate wiretaping, a case made possibly only by the appointment of an actual, independent prosecutor (something the Bush and Obama DOJs have shunned).

The Supreme Court Rules.

After Mardian’s oral argument, the DOJ was less enthused with their prospects for success and they had a right to be. The Justices were beginning to align in two camps, but neither camp gave DOJ the win. At least one Justice was inclined towards a very limited decision, one that would focus on the Omnibus Act and merely find that the Reynold’s type affidavit (we’ll get to that later) offered by the DOJ and Mitchell was insufficent under the Omnibus Act’s requirements – in other words, that a “national security” argument from the government could be trumped by … bad drafting. That Justice, though, was Justice White (who ended up issuing a  separate concurrence on this theory), not Justice Powell.  In the other camp, to the surprise of many, was newly appointed Justice Powell.

The same Powell who had argued for government powers of surveillance before coming to the court (and is thought of as the father of the think tank approach to corporate activism to shape legislation) was now being given the assignment of writing the opinion for the majority of the court, a court that agreed 8-0 that the DOJ could not order the District Court Judge to return evidence in the case, with only a split on how narrowly they would issue their opinion. The Powell opinion took Madrian’s argument that the Attorney General (much less night supervisors on an NSA shift) was better qualifed than the courts to determine if and when the Fourth Amendment should apply and stood it on its uninvited ear.

With respect to the Omnibus Act argument, Powell wrote:

At most, this is an implicit recognition that the President does have certain powers in the specified areas.

…Rather than stating that warrantless presidential uses of electronic surveillance “shall not be unlawful” and thus employing the standard language of exception, subsection (3) merely disclaims any intention to “limit the constitutional power of the President.”

…In view of these … carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act.

Now on to the DOJ’s Mitchell Doctrine argument. Powell restricts the decision to not include a case where there had been authorized surveillance leaving open, in part, what might be required to be turned over if the surveillance had been legal (ed. although cases such as Jencks and Brady presumably would still have application in such a case, especially since Jencks, too, involved DOJ arguments of “national security”) and also leaving open the issue of whether surveillance involving a foreign power  for foreign intelligence would have been legal. With those caveats, he went on to deal with the Mitchell Doctrine for surveillance of US “dissidents.”

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.” Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. … The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

Pointing out that the warrant clause of the Fourth Amendment is not “dead language” Powell dismisses the argument that the Executive branch is only required to be subjectively “reasonable” and recites a long history of cases finding that the Fourth Amendment is not intended to be entrusted to an Executive’s secret and subjective decision of reasonableness. Despite the pragmatic force lent to the government’s arguments by bombed out buildings and civil unrest, Powell found that the President’s role with respect to domestic security has to be exercised within the bounds of the Fourth Amendment.

Thus, we conclude that the Government’s concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government’s domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.

As the surveillance of Plamondon’s conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U.S. 165 (1969), is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, “the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect.”

So now we have some of the picture that was partly completed with the Keith case. Uncertainty as to what is intended on the domestic v. foreign intelligence front, uncertainty as to delegation powers of the President, some certainty as to domestic groups or persons and even “intelligence” surveillance of such groups. There is a rule for full (not limited by relevancy) revelation of illegally obtained information to a criminally accused. How does that apply to a capriciously, or even “reasonably” detained person who has not had pre- or post- detention due process or to a militarily detained person “on a battlefield” that is argued to include the United States, even though courts are open and operating here?  How does it apply to innocent Americans who were granted civil enforcement rights under FISA and yet were routinely subjected to warrantless, non-particularized, surveillance and storage of their personal information?

Many of the unanswered questions are, after all, questions the Supreme Court would just as soon not have to answer, if for no reason other than the one pointed out by Judge Ferguson – that no matter what egregious government behavior the court is faced with, the courts have little power to remedy that situation. I would argue, though, that there is more power than Judge Ferguson had available to him. After the Church commission findings that many peaceful Americans and journalists and even politicians were wiretapped, the Foreign Intelligence Surveillance Act was passed. FISA put limits on the government’s ability to claim that it had legally engaged in foreign surveillance, requires oversight by a court – even if it is a secret court, and recognized the problems with relying on the same prosecutors who were violating the law to prosecute themselves or their superiors by creating a direct action by citizens against the illegal and uninvited ears.

To date, no court has allowed any American citizen to avail themselves of the FISA civil penalties in connection with the massive warrantless government programs, despite the fact that those penalties written specifically to address the problem Judge Ferguson pointed out and to allow for a remedy when the Executive runs amok. One reason they have not done so is that they have consistently agreed that petitioner in a case under FISA could not have access to the very information that the Keith case required to be made available to defendants in the criminal cases there. And they have denied such access based on the same kind of Reynolds affidavit that even Justice White found insufficient in a case, such as the Keith case, where there was a statutory scheme that made non-compliant government action criminal .

These aspects of the Keith case (or at least my take on these being aspects) – the Reynolds affidavit, Justice White’s concurrence in the Keith case, duties of the Federal intelligence Surveillance Court under Alderman, and the FISA civil penalties overlay – those may have to wait for a part III. ;)

  1. jaker says:

    Hayden was so affirmative for the camera’s. Nothing to do with probable cause

    Olbermann”maybe they have a different constitution over there at the NSA”

    • john in sacramento says:

      Of course, at the time Hayden said that, there was testimony by him, to The House Permanent Select Committee on Intelligence from April 12, 2000 which was accessible at the NSA website including powerpoint slides that he himself used at the hearing which contradicted what he said in the clip

      I wrote a short blog on it at the time, and strangely enough, the NSA links are now broken, like they didn’t even exist (I’m shocked, shocked I say), but thanks to the wayback machine the pertinent slide I linked to, is here

      Legal Protections for U.S. Persons in the U.S

      * Must be for a Foreign Intelligence Purpose
      * Probable Cause Standard Applies
      * Must be an “Agent of a Foreign Power”
      ….. Spy, Terrorist, Saboteur or Someone Who Aides and Abets Them
      * Requires a Foreign Intelligence Surveillance Act (FISA) Court Order

      In the clip he says

      Reporter: My understanding is that the Fourth Amendment to the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use…

      Hayden: Well actually, the Fourth Ammendment actually protects all of us against unreasonable search and seizure. That’s what it says.

      Reporter: But the measure is probable cause, I believe.

      Hayden: The ammendment says unreasonable search and seizure.

      Reporter: But does it not say probable…

      Hayden: No

      • Mary says:

        That’s great – that you picked up on NSAs own website info to contradict him back then – and they’ve scrubbed it now. The way that I remember his responses in this press exchange (which may not be completely reliable) he also included a spiel on how the NSA was trained on the 4th amendment and if there was one thing they knew, it was the 4th, inside out. Apparently the out more than the inside.

        I think this is where he also represented to the country that there were no dragnets. All of which followed on his post-911 testimony to Congress that the rules under which NSA was operating had not changed and that, basically, it would be up to Congress to change those rules.

        pdaly – it’s incredible how the arguments get recycled and each time with someone like a Hayden dutifully blinking away while he claims that everything is different now.

        JL – *g*

        Tarheel, a part of me hopes (for brief periods before it flickers out) that, now that it’s a definite that Obama has pulled on his curls and pinafore and gone through the looking glass, the court is going to pick a good facts case and that’s why they keep denying cert on so many of the options. Then I wake up and remember the court may have issued Milligan and the Keith case, but it also spit out Korematsu and Dred Scott. And they’ve now figured out that they can get to the Korematsu type results without having to even exercise the personal act of responsibilty of penning an opinion. But really – given what the Democrats wouldn’t do over the last 4 years, it’s not that surprising to see the lower courts keep encouraging the Sup Ct to take the “let Congress fix it if it’s broke” approach. And Obama locked in one less vote against Exec power with Kagan.

        • ANOther says:

          “And Obama locked in one less vote against Exec power with Kagan.”

          Are you sure? Wouldn’t you have assumed the same with Powell?

          Me – I’m just an astigmatic optimist.

          Thanks for the series, Mary, highly educational. I look forward to Part 3.

          • Mary says:

            Yes – I would have assumed the same with Powell, but the difference imo here is that Kagan is Rheinquist, not Powell. IOW, she’s like the Justice who worked on the issues in and for the WH and ended up recusing. fwiw

  2. JohnLopresti says:

    Off topic: There is a new statistical algorithmic interpretation of privacy afoot from U Chi*s prof. Harcourt et al., advocating randomizing protections of privacy in an intermittent way; sometimes u got it, sometimes u dont; like the constitution heard over a radio station with poor reception.

    • Mary says:

      What could go wrong with that? BTW – I hear that with enough money, you can make sure you always get good reception. ;)

      • JohnLopresti says:

        Your suggestion that the rich will be heard is part of the paper*s thesis, as I understand it; that peaceable affluent people will provide informal guidance to the overseers, indicating to the searchers that the random searching be de-randomized sufficiently that it be conducted primarily among less peaceful, poorly monied, and less influential segments of the populace.

  3. underemployedlovinit says:

    I just read an article about X-Ray vans that have 1,500 times the power of an airport scanner? In use now in your neighborhood.

  4. Mary says:

    Just a few random bits to add more flavor or to re-emphasize from the above.

    Judge Ferguson from the Sinclair case had lost his son in Vietnam the year before his ruling in Smith. Justice Powell had written an Op-Ed before he was appointed to the court that really seemed to lay out his belief that foreign and domestic surveillance were not really different from each other and the President had to have huge powers for both to protect national security. You almost can’t fathom how unlikely a candidate Powell was to be writing this opinion and taking this position.

    Both the man who authorized the Plamondon surveillance and gave affidavits to the court (Mitchell) and the man who argued the case to the Sup. Ct., Mardian, were tied to the Watergate scandals that would begin to unravel in the months to come. Mardian was convicted of conspiracy to hinder the investigation but his conviction was overturned on appeal (Mardian also prosecuted Ellsberg in the Pentagon Papers cases and was a bit of an Addington who went after people viciously and often without any good basis other than the power to do it – his brother was Mayor of Phoenix at one point – note for the AZ crew).

  5. Mary says:

    I especially wanted to use Hayden, bc he (and Mukasey for that matter) might as well have been plucked from the Nixon debate team. Just as Madrian and Mitchell had argued over and over that the Executive branch doesn’t need warrants, it only needs not be unreasonable (i.e., to be reasonable, as it defines reasonable to itself, in secret), you see Hayden in his clip above make the EXACT same argument above, and make it as if it is the accepted law of the land instead of being an argument explicitly rejected by the Sup Ct.

    Powell wrote that “reasonableness” basically is defined by – – the warrant clause.

    It may well be that, in the instant case, the Government’s surveillance of Plamondon’s conversations was a reasonable one which readily would have gained prior judicial approval. But this Court “has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.” Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government

    Hayden has been making the same argument for indefinite detention of kidnap victims and human trafficking products sold to the US – – that he thinks it’s reasonable and being done reasonably and that should end the inquiry and its reasonable to just tell the courts to shut the hell up.

  6. pdaly says:

    I’m enjoying your series, Mary. Love the “univited ear” term.

    I didn’t realize that this set of zombie ideas of Executive superpower had such a long history–and that judges had already dealt them mortal blows.

    Somewhat OT: I remember reading about the debate our founding fathers had about the necessity of writing out a Bill of Rights– some thinking it would unintentionally limit citizens’ rights to only those written down on paper. I’m glad the ‘write the rights down’ crowd won out–in only to provide us signposts for measuring the government’s encroachment on our freedoms.

  7. TarheelDem says:

    So the choice for the Gang of Five is do they (1) ratify the assertions of executive power as Constitutional; (2) slap down all of the assertions of executive power being presented; or (3) slap down only Obama’s use of that executive power.

    Excellent series, Mary.

  8. wayoutwest says:

    I think we passed through the looking glass a long time ago. The last ten years have shocked some out of the delusion that we live under the rule of law.

  9. Sara says:

    Off Topic —

    Since we discussed this perhaps ten days ago when the FBI searches in Minneapolis were the interest of the day, I thought I would put down an update. Remember my argument was not to Jump to Judgment or Conclusions until you pull together more potentially related information, and use your thinking machine to evaluate it.

    Yesterday, the six “Peace Group Members” announced that they would not be appearing in Chicago before the Federal Grand Jury to which they have been subpoenead next week, but would instead send their attorney to offer a Fifth Amendment Claim.

    We all know, I suppose, that this is not the way it is done. Attorney’s do not represent clients before Grand Juries. The Grand Jury has benefit of all the seized evidence, and anything else they have collected, and they want to talk with the targets of the investigations.

    So, if they are serious, and I believe they are given other things that have rolled out locally over the last few years, I would expect these members of the “Peace Group” to get a contempt of court citation, and perhaps placed in custody until the Federal Grand Jury finishes its work. Who knows what else the FBI and Prosecutors have collected, who knows whether it is real evidence of what is being discussed — using the cover of a “peace group” to move money and perhaps other things via some sort of Mexican or FARK channel to and from the “middle east”, or some sort of vague fiction for which the evidence is poor. We just don’t know. — At this point it is just a running story, a potentially dangerous story, and one I think we should follow closely. But I do believe it quite possible that this investigation is connected with the recruitment of American Somali young men who have gone to Somalia, have become suicide bombers, hav been killed in actions there, and possibly could be related to what appear to be gang/tribal murders in the Somali Community over the last couple of years in Minneapolis.

    Of one thing I am convinced. Our new generation of Progressives needs to take all we have discussed over the years, and if we want to stand for Civil Liberties, we need to be able to distinguish when to make judgments, reach working conclusions that do that, and not be too quick off the waving of the flag and ringing of the bell, when ever someone shouts Cops and Search Warrant. The FBI and Prosecutors could be making fiction, they could be pretty much on target, or they may only have a piece of the picture, and it will change as the story and investigation evolve. We only get in a position to know if we follow the story carefully, and evaluate the pieces of it as they emerge. Then we have much better rock hard foundations for making that Civil Liberties claim. We be REALISTS.

    But it is the legal strategy that intrigues me tonight. One just doesn’t send one’s attorney to a grand jury when a specific person has been placed under subpoena. Fifth Amendment claims have to be made by the party under subpoena, though of course an attorney can discuss it with a Prosecutor. We went through all the rules on this in the Plame/Wilson case. Remember Judy?

    Again, Minnesota Public Radio’s site seems to be the go-to place for keeping up with the public version of the running story.

    • bmaz says:

      Agreed completely. Gotta say, if I were the AUSA handling this, I walk into the GJ oversight judge about two minutes after the subpoena report time and request a contempt order, arrest warrant and have the Marshall’s office ready to roll on it with the ink on the signature still wet. Also would not want to be the lawyer appearing to pitch that shit. Jeebus, you gotta think he is going to get reamed.

      • Sara says:

        bmaz, glad you agree. and I suspect something like that quick cite for contempt plus arrests will be the picture of the day next week when the Grand Jury Date comes up.

        Then the net will be filled with broadsides about ARRESTS!!! ARRESTS!!!

        Then those who forgot the story last week will again trigger their Hot Button, ring bells, wave flags, essentially waste energy. You have to wonder what kind of Lawyer agrees to play the patsy in games like this. OH a Civil Liberties Lawyer of course. What fools.

  10. klynn says:

    no court has allowed any American citizen to avail themselves of the FISA civil penalties in connection with the massive warrantless government programs, despite the fact that those penalties written specifically to address the problem Judge Ferguson pointed out and to allow for a remedy when the Executive runs amok.

    Mary, your quote above and your series matched to bmaz’s following post, Military Encroachment on Civilian Authority, give me a chill when read as a pattern of authority shift.

    Great series. This should be the bones of a book…