Fourth Amendment Under Attack

Yesterday's NYT has a piece detailing how American attorneys fear speaking freely to colleagues and clients out of concern the U.S. government is listening and may misuse innocent statements.

(Attorney) ... Nelson says he does not dare to phone this client or send him e-mail messages because of what many prominent criminal defense lawyers say is a well-founded fear that all of their contacts are being monitored by the United States government. ... The anxiety among defense lawyers has grown as the Bush administration has pressed Congress to pass a bill that would permanently ease restrictions on domestic wiretapping in investigations involving national security. Democratic Congressional leaders and the White House are at a stalemate over the legislation.

The 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 inherent power of the presidency has modern U.S. precedent—the Nixon administration.

But 1972 saw a unanimous Supreme Court shoot down Nixon’s attempt to legalize his monarchical claims of his presidency through warrantless wiretapping.

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

Justice Lewis Powell, writing for a unanimous Court, 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))

One wonders if today's Supreme Court would vote to protect Fourth Amendment freedoms as did its predecessor. We live in different times than we did during Nixon.