Taking on Another President: Judge Damon Keith

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Mr. Kutler is the author of The Wars of Watergate.

New York Times, Quote of the Day, August 27, 2002:

"Democracies die behind closed doors."--Judge Damon J. Keith, in a ruling declaring that the Bush administration acted unlawfully in holding deportation hearings in secret.

Judge Damon Keith has had his moment in the sun. Writing for a three-judge panel in the 6th Circuit Court of Appeals, Keith forcefully rejected the Bush Administration's conduct of secret deportation hearings against those with purported links to terrorism.

"Democracies die behind closed doors," Keith wrote. "When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment 'did not trust any government to separate the true from the false for us.'...They protected the people against secret government." Keith's pointed remarks about the fundamental importance of a "free press" undoubtedly caught the attention of the media, ever alert for allies as it confronts increasing governmental secrecy.

Rep. John Conyers (D-MI), the ranking member of the House Judiciary Committee, and four Michigan newspapers, had sought to attend deportation hearings for Rabih Haddad, a Muslim clergyman who had overstayed his tourist visit. Haddad apparently is a key figure in the Global Relief Foundation, an Islamic charity whose assets were frozen because of its alleged links to terrorist organizations.

The Court provided a rare public challenge to the government's steady assertions of unchecked power and the secrecy policies it has advanced since September 11. But Judge Keith himself is no stranger to the ceaseless struggle to maintain constitutional standards against imperious executive power. During the Vietnam War protests, he challenged a government that had assumed for itself the sole authority for determining those standards, refusing to recognize any checks and balances other than its own self of restraint. His ruling, and the precedent it provided, proved an important benchmark in those tense days of protest, and the resulting Watergate scandals.

Richard Nixon promised a "law and order" Attorney General in 1968; instead, he gave us John Mitchell, who distinguished himself with felonies and prison time. At the outset, Mitchell authorized the FBI to conduct electronic surveillance of antiwar dissidents, most notably the Students for a Democratic Society and the militant Black Panthers. Prevailing Supreme Court doctrine held that if a trial judge learned of illegal surveillance, he must order the records turned over to the defense. In a sweeping assertion, Mitchell refused, and contended that the President had constitutional power to wiretap "to gather intelligence information concerning those organizations which are committed to the use of illegal methods to bring about changes in our form of government and which may be seeking to foment violent disorders."

In a 1970 Michigan case, the government secured indictments against the so-called "White Panthers," charging a conspiracy to bomb an Ann Arbor CIA office. Defense lawyers filed a routine motion to compel the government to disclose whether it had obtained wiretap information. Mitchell refused, and responded that wiretaps were "necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government."
District Judge Keith rejected Mitchell's arguments in January 1971, and ordered the government to produce wiretap transcripts. The government unsuccessfully appealed at the intermediate level, and the case eventually found its way to the U. S. Supreme Court. The "Keith Case's" charming, yet paradoxical title, United States v. United States Court for the Eastern District of Michigan, belied the tense confrontation between competing governmental authorities.

The government essentially formulated its basic position in the Court of Appeals, contending that the President had the "inherent power" to safeguard national security, and "the historical powers of the sovereign to preserve itself." The government cited no constitutional authority, and vaguely alluded to only a few cases that the Court found inappropriate. The government conveniently ignored the Steel Seizure Case, certainly the most important precedent on inherent powers. In 1952, the Supreme Court had rejected President Truman's assertion of inherent, emergency powers to seize the nation's steel mills because of an impending strike during the Korean War. Curiously, the government seemed to stake its constitutional authority on a claim that the President had succeeded to the sovereign powers of George III. The Department of Justice's lawyers seemed unaware of the elementary history lessons of the American Revolution -- including, as Judge Keith again reminded us -- of the revolt against secret, unchecked authority.

Solicitor General Ernest Griswold, the former Dean of the Harvard Law School, pointedly refused to make the Administration's argument, convinced that the government was wrong and would lose. Eight sitting Justices affirmed the lower court, including rather grudgingly, Chief Justice Burger. Newly-appointed Justice Lewis Powell, a onetime supporter of the wiretap program, wrote the opinion. William Rehnquist, Powell's companion appointee, recused himself. But his views are no mystery since he had worked on the government's earlier briefs prior to his appointment.

The Court's public rejection of the government's determination to withhold wiretap information came on June 19, 1972, only two days after the Administration's buggers had proceeded to another operation on their agenda, one that would focus the issues more clearly -- and fatefully -- for the President.

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