Sunday, February 05, 2006

Bush Heading for Major Legal Defeat

February 5, 2006

Fourth Amendment History Repeats in Bush Spying

by Michael Leon

As the Bush spying revelations continue, some words worth reading:

“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 when the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’...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.”

So wrote conservative Justice Lewis Powell in the Supreme Court case United States v. United States Eastern District Court, Eastern District of Michigan, et al., ((407) U.S. 297 [1972]).

As recounted in the brilliantly-written “Rights on Trial: The Odyssey of a People’s Lawyer” (Harvard University Press, 1983), by civil rights giant Arthur Kinoy who argued the case, the Nixon administration program to surveil and suppress dissent with the electronic tools available in the early 1970s was unanimously rejected by the Supreme Court in 1972 as unconstitutional on Fourth Amendment grounds, and the Nixon administration was dealt a devastating legal and political blow.

As the Bush administration roars its chilling and Nixonian assertion of its executive spying authority to defend its warrantless, domestic eavesdropping operations, one hopes today’s Supreme Court will ultimately rebuff the Bush administration.

And make no mistake; Bush is in desperate legal and political straits on this one. Reformist, post-Nixon legislation and the Fourth Amendment specifically forbid Bush’s warrantless spying program.

The desperate Bush attempt to defend its spying in its Jan. 19, 2005 Justice Department white paper [”inherent constitutional authority as Commander in Chief”] echoes Nixon, and comes right as Bush rails at his political critics’ providing “comfort” to the enemy by criticizing Bush’s assault on our civil liberties.

As the Republican Congress self-consciously divests itself of its role as a constitutional check on the executive branch, the liberal blogosphere and the mainstream press (though not frequently enough) have come to function as a replacement institutional check on the Bush administration, and of course Bush can be counted on to go after the press now.

This week, Attorney General Alberto Gonzales will attempt to justify Bush’s warrantless spying operations before the Senate Judiciary Committee.

But don’t count on much coming out of this Congress outside of some loud criticism, though this will lead to an even more politically weakened administration.

And the new press and liberal blogs — though effective in exposing the administration and spreading the word — in itself will not do.

What You Can Do

After the civil liberties and peace movement hero Daniel Ellsberg [of Pentagon Papers fame] appeared in Madison in late January blasting away at Bush’s spying, many in the crowd, as around the country, were asking what they could do.

What you can do right now is contribute to the Center for Constitutional Rights (co-founded by attorney Kinoy) and the American Civil Liberties Union who are among those leading the legal fight against Bush.

Bush is attempting a legal coup to dismantle the Fourth Amendment, and the legal arena must be bolstered with legal warriors who will stop Bush, just as people’s lawyers like Arthur Kinoy stopped Nixon 34 years ago.

No one thought southern conservative Lewis Powell capable of sounding like William O. Douglas when it came time to put an arrogant chief executive back in his place. But powerful legal arguments backed by political will took Nixon down, and there is every reason to believe history will repeat itself and Bush will fall as well, if we get the resources now where they are most needed.


Michael Leon is a writer living in Madison, Wisconsin. His writing has appeared nationally in The Progressive, In These Times, and CounterPunch. He can be reached at

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