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"Dedicated to exposing the lies and impeachable offenses of George W. Bush"

Wiretap case called throwback to Nixon
Grand Rapids Press
By Pat Shellenbarger
The Grand Rapids Press
December 21, 2005

In authorizing electronic surveillance without a court order, President Bush ignored a landmark U.S. Supreme Court decision involving a 1960s radical now living in Barry County, those involved in the 1972 case insist.

While careful not to criticize the president, U.S. Appeals Court Judge Damon Keith said he thought the case bearing his name and unanimously upheld by the Supreme Court had put an end to eavesdropping without a warrant.

"I think the case speaks for itself," he said Tuesday. "It appears to me that the Keith case, as interpreted unanimously by the Supreme Court, is the law in this case."

Bush's executive order allowing the National Security Agency to monitor phone calls and e-mail messages without a warrant is similar to a Nixon-era program known as the Mitchell Doctrine, named for former Attorney General John Mitchell, authorizing federal investigators to wiretap suspected subversives without a warrant.

The Supreme Court, by an 8-0 ruling, said the warrantless wiretaps violated the Constitution. That decision came in the case of Larry "Pun" Plamondon, John Sinclair and Jack Forest, leaders of the White Panther Party, who were charged with bombing a CIA recruiting office in Ann Arbor in 1968.

Plamondon, 60, who now lives in Barry County and supports himself as a cabinet maker and American Indian storyteller, called news of Bush's surveillance program "a real flashback. I had to pinch myself.

"It doesn't surprise me at all. It's just Bush and his right wingers trying to turn the clock back," said Plamondon, author of the 2004 memoir "Lost from the Ottawa."

His attorney, Hugh Davis, of Detroit, said he was surprised when he read a New York Times story last week revealing the Bush Administration's previously secret eavesdropping program.

"I read it and thought everything I worked for 30 years ago is now gone," Davis said. "It's just straight up Big Brother wiretapping without a plausible relationship to actual, ongoing criminal activity. It's about as illegal as it can get."

After the Sept. 11, 2001, terrorist attacks, Bush signed the order authorizing the NSA to monitor communications between people in the United States and those in other countries. The super-secret agency previously was allowed only to monitor communications outside the United States.

Despite criticism from Democrats and Republicans, Bush defended the program this week, saying it does not violate the Constitution or federal laws and is necessary to assure national security and avert attacks by terrorist groups, such as al-Qaida.

U.S. Justice Department attorneys under Nixon made a similar national security claim in defending a warrantless wiretap that picked up Plamondon in a phone call to the Black Panther Party headquarters in California. Plamondon was on the FBI's Ten Most Wanted list and hiding in Algeria when he placed the call, Davis said.

That call was intercepted by the NSA, Davis said, an agency so secret the government at the time did not even acknowledge its existence. When government attorneys refused to release a transcript of the conversation, Keith, then a U.S. District Court judge in Detroit and now on the 6th U.S. Circuit Court of Appeals, dismissed the charges against Plamondon, Sinclair and Forest.

On June 19, 1972, the Supreme Court upheld Keith's decision, saying warrantless wiretaps violate the Fourth Amendment's protection against unreasonable searches and seizures. "These Fourth Amendment freedoms cannot be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch," the late Justice Lewis Powell wrote.

A White House spokesman declined to answer why that decision does not still preclude warrantless wiretaps, and referred to Press Secretary Scott McClellan's daily press briefing. But none of the questions McClellan answered Tuesday dealt with the 1972 Supreme Court decision.

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), creating a secret court to approve warrants in national security cases. Davis questioned why the Bush Administration did not seek the court's approval for the eavesdropping, since it rarely is believed to turn down a request.

"If they had that kind of evidence, why couldn't they get a warrant?" Davis asked. "How could Bush be so stupid to turn his back on the court that's always given him what he wants, unless it goes beyond what even FISA would approve?"