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 ).
As recounted in the brilliantly-written Rights on Trial: The Odyssey of a Peoples 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.
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 Bushs 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 Bushs assault on our civil liberties.
This week, Attorney General Alberto Gonzales will attempt to justify Bushs warrantless spying operations before the Senate Judiciary Committee.
But dont 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 Bushs spying, many in the crowd, as around the country, were asking what they could do.
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 peoples 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.