Of presidents and precedents

Last week's lawsuit by the ACLU seeking to halt the National Security Agency's formerly secret no-warrant domestic wiretap program could, conceivably, have been filed in any U.S. district court. So why was the Eastern District of Michigan chosen as the place to fight this crucial legal battle?

Michael Steinberg, legal director of the Michigan ACLU, tells News Hits that, at least in part, this particular court was selected for "symbolic" reasons.

The symbol Steinberg refers to is a case that dates back to the 1970s, when the United States was locked in another unpopular war being run by another president whose administration displayed a frightening disregard for the Bill of Rights. The issue achieved landmark status in a trial involving John Sinclair and other members of the radical White Panther Party accused of conspiring to bomb a government building in Ann Arbor. Presiding over the case was then-U.S. District Court Judge Damon Keith.

During the trial, according to the Web site maintained by Wayne State University's Reuther Library, it was revealed that the feds had wiretapped the phone of at least one defendant without first getting a warrant.

As with the current case, the administration — Richard M. Nixon was calling the White House home back in those days — contended then that the action was needed to protect "national security." It is one of the justifications being trotted out anew by the Bush administration as it attempts to justify what many see as a clear violation of the law.

This was Keith's response to that argument:

"The contention by the Government that in cases involving 'national security' a warrantless search is not an illegal one, must be cautiously approached and analyzed. We are, after all, dealing not with the rights of one solitary defendant, but rather, we are here concerned with the possible infringement of a fundamental freedom guaranteed to all Americans. ...

"An idea which seems to permeate much of the Government's argument is that a dissident domestic organization is akin to an unfriendly foreign power and must be dealt with in the same fashion. There is great danger in an argument of this nature for it strikes at the very constitutional privileges and immunities that are inherent in United States citizenship. It is to be remembered that in our democracy all men are to receive equal and exact justice regardless of their political beliefs or persuasions. The Executive branch of our Government cannot be given the power or the opportunity to investigate and prosecute criminal violations under two different standards simply because an accused espouses views which are inconsistent with our present form of Government. ...

"Such power held by one individual was never contemplated by the framers of our Constitution and cannot be tolerated today."

As the Wayne State Web site goes on to note: "Keith ordered the government to turn over its tapes to the defendant. After Judge Keith's decision was upheld by the Supreme Court, the government responded by dropping the charges."

Steinberg says, "We're going to be relying heavily on the Keith decision in our case against the NSA."

Keith, by the way, now sits on the U.S. Court of Appeals for the Sixth Circuit. And Nixon, when we last checked, was still dead, but his law-breaking spirit seems to be alive if not well in today's White House.

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