National Lawyers Guild
Chicago Chapter
|
|
National Lawyers Guild
|
The Libby Scooter: |
|
| Home | About | News and Press | Legal Observers | Know Your Rights | Join | Resources | Donate |
|
National Executive Committee
President: Marjorie Cohn Executive VP: Executive VP: Treasurer: Roxana Orrell National VPs: National Legal Worker VP: National Law Student VPs: Ryann Zelewski, National Jailhouse VPs: ------ ------ 
Statue of Guild luminary Louis L. Redding in Wilmington, Delaware's City-County Building. Redding was the first Black lawyer in Delaware.
NLG Litigation in History |
United States v. United States District Court
407 U.S. 297 (1972)
I remember picking up my own telephone and listening in astonishment to a conversation between two FBI agents changing the reels on the tap on my phone.The U.S. was fighting an unpopular war. Casualties were mounting. Police in the communities and wardens in the prisons coordinated efforts to "chill" First-Amendment-protected activities. In the White House, plans were afoot to assert broad "inherent authority" for the Executive Branch. The president and his attorney general had already authorized uncounted hundreds of warrantless wiretaps. Now the solicitor general and the top lawyers at the Justice Department were ready to go to court in defense of the president's scheme -- in effect, to tell the Supreme Court to sign off on its own demotion from co-equal branch of government to small claims court. Congress, as well, ! was to be subordinate to this proposed, extra-powerful presidency -- according to the government's theory in United States v. United States District Court for the Eastern District of Michigan et al. (Plamondon et al Real Parties in Interest), No. 70-153. [internal link to opinion] Arguments were set for February 24, 1972. At stake was not only the Bill of Rights, but the first three articles of the Constitution itself. In the COINTELPRO era , the FBI routinely bugged the phones, homes, and offices of alleged "subversives." If Federal indictments were brought, competent defense attorneys would routinely file discovery motions. If the defendants and their lawyers suspected the bugs, the Feds denied it and the judges believed the Feds. Any evidence tainted by the illegal searches would be admitted, with no chance of relief. Any exculpatory evidence remained hidden. One day in early 1970, this depressing pattern changed for the weird. The U.S. Attorney in Detroit was prosecuting three White Panthers , anti-racist community organizers who mainly worked among urban, white youth, for "conspiracy." One of the charges covered property destruction at a local CIA outpost, which was characterized as a massive terrorist outrage. The case was called U.S. v. Sinclair. Responding to defense motions, the government admitted that they had obtained evidence from a bugged phone, and that there was no warrant. 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." The government's position was that the defense wasn't entitled to the wiretap information. Judge Keith read the Fourth Amendment differently and ordered the government to turn everything over. The government appealed and lost. By 1972, the case was going to the Supreme Court. 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. The lawyers handling the White Panthers' response to the State's appeal in U.S. v. Sinclair went to National Lawyers Guild luminary Arthur Kinoy [internal link] to argue the case at the Supreme Court. Kinoy knew he had a reputation for exaggerating to make a point, and he debated with himself (and co-counsel, including the straight-laced corporate lawyer representing Judge Keith) how far to go in blasting the government's case. He was still unsure when he stepped to the rostrum and the green light blinked. If he told the Justices that the Nixon administration was hatching a plot to abrogate the Constitution, would they roll their eyes and stop listening? On the other hand, if he stuck to a point-by-point refutation of the government's case, would the technicalities nickel-and-dime his argument to death? Kinoy went for broke. He said that two weeks previously, a Nixon administration official (H.R. Haldeman, though Kinoy didn~Rt name him) 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 he made this argument, Kinoy thought he could almost hear co-counsel behind him groan. Waiting almost four months until the decis! ion was announced, he fretted daily that he had blown the whole case with his kooky example. Three new Nixon appointees sat on the bench. The Republican civil-libertarian chief justice, Earl Warren, had retired. Gone too was the FDR-appointed liberal, Hugo Black. Even so, not one justice could tolerate a scheme in which Congress and the Supreme Court were told to butt out. In fact, the Court's rebuke of the government's claim was unanimous. And what about the kooky example? Years later, Kinoy would come to believe that the only reason the Watergate bur! glars were caught at all was because of the decision in U.S. v. U.S. District Court. In his autobiography, Rights on Trial, Kinoy writes that he waited anxiously through the spring and summer of 1972 for the decision. The day before it finally came down, Monday, June 19, 1972, he was distracting himself from back pain by leafing through the Sunday New York Times and caught a strange little article: "5 Charged With Burglary at Democratic Headquarters." The previous Saturday night, five well-dressed burglars with handfuls of eavesdropping gear had been busted breaking into the Democrats' office at the Watergate Hotel. The investigation later revealed that the bugs had been successfully planted in late May. What were the burglars doing back in DNC headquarters only 36-odd hours before the Court announced its decision in this case? They said that one of the bugs was faulty and they had gone back in to fix it. But, as one of the police officers noted later, that only takes one guy. Kinoy's guess is that someone leaked the impending decision to the Nixon White House, where they panicked and sent the burglars back to remove the bugs. Had the increasingly conservative Court gone the other way, bugging the Democrats would have been legal! Instead, trying to undo their un-Constitutional actions, the Watergate burglars and their White House masters got caught, brought about their own downfall, and changed history. Postscripts -- * On losing unanimously in the Supreme Court, the government dropped all charges against the White Panthers ~W John Sinclair, John W. Forrest, and Lawrence (Pun) Plamondon. * While the appeals were pending, John Sinclair was at the start of a 9 - to 10 year stint for selling 2 joints to an undercover narcotics officer. John Lennon & Yoko Ono did a concert for him in Ann Arbor and sang "John Sinclair". The Michigan supreme court later overturned his conviction. He managed the seminal ! protopunk band The MC5, helped found the Detroit anarchist paper Fifth Estate, and later recorded with the Blues Scholars. He lives in Amsterdam. He is 64. * Lawrence (Pun) Plamondon did 32 months in Federal prison during the appeals before charges were dropped. He was a roadie for Kiss & Foreigner. In 1981, a friend & spiritual adviser introduced him to his Ojibwe & Ottowa Indian heritage and he kicked drugs & alcohol. He is a carpenter & American Indian story teller in Michigan. He is 60. * Judge Keith was on the short list to be Jimmy Carter~Rs attorney general in 1976. The next year, Carter named him to the U.S. Court of Appeals for the Sixth Circuit, where he sits to this day as a senior judge. His opinion in this case became known as the "Keith Decision," but is only one of his many famous opinions. He is winner (among other awards) of the NAACP's Springarn Medal. He is 83. * The "Keith Decision" (321 F. Supp. 1074, ED Mich. 1971), litigated and decided as a Fourth Amendment case, is still taught ! in government and policy courses as a separation of powers lesson. * Thirty years and nine months after the Supreme Court decision in U.S. v. U.S. District Court, a president asked for and got Congressional approval for a preemptive war against a U.N. member state that had not attacked the U.S. Thirty-three years and twenty-seven days after the High Court unanimously held that domestic surveillance requires at least limited judicial oversight, the president proclaimed "inherent authority" -- autonomy from Congress and the judicial branch. Write your own postscript here. |