Nixon’s War at Home: The FBI, Leftist Guerrillas, and the Origins of Counterterrorism by Daniel S. Chard (review)

Abstract

In the fall of 1970, Judge Damon Keith presided over a “conspiracy” case involving members of the White Panther Party, a radical leftist organization in Michigan. Three leaders of the organization were charged at the United States District Court of Eastern Michigan, accused of bombing CIA offices in Ann Arbor on September of 1968. The government lawyers presented evidence including electronic surveillance tapes to demonstrate that the defendants had conspired to commit the bombing. The defense attorneys filed a motion against this particular evidence because it lacked a judicial warrant. Judge Keith ruled in favor of the defense and stated that this was in direct violation of the Fourth Amendment. The prosecutors, instead of moving forward with the case, pushed this particular matter further. In the Appeals trial, Attorney General John Mitchell’s representatives, under direction of William Rehnquist, then Assistant Attorney General, found examples from old English case books of assertions by British monarchs between the fifteenth and seventeenth centuries of their “inherent power” to authorize extraordinary searches when deemed necessary to protect the nation. When the Court of Appeals of the Sixth District ruled in favor of Judge Keith, Mitchell and the justice Department pushed the case up to the Supreme Court in 1972. In the case of United States v. U.S. District Court et al, 407 U.S. 297, Robert Mardian, Assistant Attorney General of the United States, argued in front of the Supreme Court that the president had an “inherent power” to authorize the use of electronic surveillance without a warrant. In other words, the president should be allowed to circumvent provisions in the Fourth Amendment, when invoked as a matter of national security.1 In his opening remarks, Mardian argued that it was ultimately at the discretion of the executive to determine matters of domestic security and expedite the use of warrantless surveillance tactics. Arthur Kinoy, lead counsel for