Supreme Court of 1972 Protected the 4th Amendment

The Richard Nixon years (1969-1974) saw an acceleration of warrantless surveillance and presidential claims of executive power to wiretap and spy on American citizens under the umbrella of national security and the acclaimed inherent power of the presidency to engage in action deemed necessary to protect national security just as President Nixon perceived this obligation.

George W. Bush and Dick Cheney make the same claims for themselves.

Such Nixonian claims led Congress to pass the Foreign Intelligence Surveillance Act (FISA) of 1978, mandating the government to demonstrate probable cause and obtain a warrant before placing Americans under surveillance for national security rationales within the United States.

FISA negated claims of inherent executive power to engage in extra-Constitutional programs and action.

But last week FISA was gutted, and rendered inoperative for six months (sunset clause) under the guise of national security with the cooperation of many congressional democrats and virtually every single republican. [Only two Republicans in Congress voted “nay” on the gutting of FISA: Representative Walter Jones, Jr. (R-NC) and Timothy V. Johnson (IL). Wisconsin's entire delegation of congressional democrats voted nay, and all three Wisconsin republicans in congress voted yea.]

So, we just have to trust that the administration will use this power judiciously for six months, and that the administration that has politicized virtually every function of the executive branch, attacked and smeared prominent critics, and self-consciously lied the nation into a war costing over $1 trillion and 100,000s of lives will respect the liberties enshrined in the Bill of Rights.

As a New York Times editorial notes: The new bill allows the “director of national intelligence and the attorney general authority to intercept — without warrant, court supervision or accountability — any telephone call or e-mail message that moves in, out of or through the United States as long as there is a ‘reasonable belief’ that one party is not in the United States.”

Bush like Nixon attempts to codify and legalize an unconstitutional program, in this case violative of (among other liberties) the Fourth Amendment’s protection against unreasonable searches and First Amendment right to engage in free speech critiquing the government.

UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)

In 1972, a unanimous Supreme Court shot down Nixon’s similar attempt to legalize his monarchical claims of his presidency through warrantless wiretapping.

In the vital decision UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972), Justice Lewis Powell denounced the Nixon administration’s electronic surveillance, warrantless-wiretapping program not just on Fourth Amendment grounds, but as a betrayal of the sovereign rights of citizens in a democracy to criticize their own government.

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.- Justice Lewis Powell (UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972))

Will the Supreme Court of today protect and defend the Constitution and American citizens from an out-of-control and corrupt executive branch?

Not likely.

Lewis Powell was an establishment Republican from Virginia, but today’s Republicans on the Supreme Court are more likely to be of the Senator Norm Coleman (R-MN) variety—do and say anything to protect the administration no matter the cost to the Constitution, the American treasury and lives.

One can only wish that the Supreme Court of the early 1970s that reflected the consensus of popular movements of the American citizenry demanding their Constitutional rights were functioning today.

The fact is the current Supreme Court bears no resemblance to the Supreme Court of 35 years ago.

Only poplar movements made powerful by citizen action can prevent the dissolution of our Constitution through the actions of a fear-mongering administration that longs for the unchecked power of a monarch.

As Senator Feingold writes:

We should not delay passing a bill that will end Alberto Gonzales's six-month, oversight-free surveillance holiday. The president will undoubtedly oppose these efforts and the Republicans in the Senate will no doubt filibuster any efforts to reinstate judicial involvement and tighten the controls around the president's eavesdropping authorities. In the face of that expected opposition, Democrats will need to stick together this time to fix the mess that we just created. And at least some Republicans will have to be convinced to support the Constitution.

Clearly, this will be an uphill fight. But it's a fight worth having. Our constitutional rights should not be sacrificed to scare tactics. Congress must stand up to the president. The sooner that Democrats realize that standing tough on national security doesn't mean giving into the administration, the better off they - and the country - will be.

Update: See the Nation for more information.

Update II: Powell is from Virginia, not Minnesota.