The Story of the Famous “Keith Case” That Curtailed President Nixon’s Warrantless Wiretapping: An Excerpt from Cyrus Farivar’s “Habeas Data”

The below is an excerpt from Cyrus Farivar’s new book, Habeas Data.

Richard Nixon was voted into office in November 1968 by just half a million votes, just months after both Senator Robert Kennedy and Dr. Martin Luther King, Jr., were assassinated. When he entered the White House in January 1969, President Nixon was met by a nation that was bitterly divided and viscerally hurting. By that point, the Vietnam War had been raging for nearly four years, with no end in sight. America had been paying the price in both treasure and blood: nearly 30,000 American lives had been lost from 1967 to 1968.

Cyrus Farivar

The dawn of the Nixon administration marked one of the high-water marks of mass surveillance in America. Even before Nixon, intelligence services were carrying out domestic surveillance operations dating back to the mid-1950s as a way to monitor and mitigate potential influence of communism or communist sympathizers. The intelligence community actively disrupted various civil rights groups through the Counter Intelligence Program (COINTELPRO). Other snooping efforts with more colorful names, like Project Shamrock, were designed to indiscriminately capture postal mail and telegram traffic. Others, like Project Minaret, intercepted the electronic communications of thousands of Americans—initially it was limited to antiwar activists, but by the time Nixon entered the White House, the list had grown to include senators, journalists, and even Muhammad Ali.

Those lists—and the programs themselves—would expand tremendously under Nixon. On April 30, 1970, Nixon announced the Cambodian Campaign, a military effort to strengthen the position of the South Vietnamese and capture Viet Cong matériel. The following day, students began striking in protest of this new policy to ramp up the Vietnam War. On May 4, four students were killed by members of the Ohio National Guard while protesting at Kent State University. Suddenly, Nixon’s interest in what the various surveillance programs of the intelligence agencies were—and how they could be expanded for his use—became all the more urgent.

Not three months later, in July 1970, Nixon signed off on the Huston Plan, which formalized and legalized covert mail opening and increased electronic surveillance, among other tactics. The president quickly rescinded his approval, but that didn’t stop the intelligence agencies from continuing what they had already been doing.

President Nixon’s Attorney General, John Mitchell, who just loved to illegally wiretap those dissidents ^_^

One surveillance case that preceded Nixon, but was ultimately championed by his attorney general, involved the wiretapping of dissidents. In September 1968, just over three months after the Omnibus act was signed, a small bomb went off in the CIA recruitment office at 450 Main Street in Ann Arbor, Michigan. Overnight, someone had placed a few sticks of dynamite nearby, which blew a sizeable hole in the sidewalk and damaged furniture, but did little else. No one was injured. Eventually, three men affiliated with the White Panthers leftist group were arrested and prosecuted for the crime.

As the case moved ahead in 1969 and 1970, prosecutors disclosed during a hearing that a phone conversation involving one of the defendants and a California-based Black Panther had been captured over a warrantless wiretap. As a trial date approached, defense attorneys pushed the government to disclose any electronic surveillance that was used against their clients. In an affidavit, Attorney General John Mitchell (one of Nixon’s most trusted colleagues) wrote that one of the suspects, Robert “Pun” Plamondon, was overheard on a wiretap that was “employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government.”

In other words, while under normal circumstances law enforcement would have to present a super-warrant application for a judge to sign off on the wiretap, the attorney general claimed a power, under the presumed mandate of national security, to be able to wiretap anyone unilaterally based on the power that stemmed from the Title III law. Put another way, under this logic, if Charles Katz had been perceived as a threat to national security, the FBI could have wiretapped the phone booth’s line directly rather than going through all the gymnastics of rigging up a microphone atop the phone booth.

The Ann Arbor case ran right into a buzz saw, which came in the form of then US District Judge Damon Keith. By the time he had been randomly assigned the case, Judge Keith had been a judge for only a few years. In fact, when he was tapped for a judgeship by President Lyndon Johnson, he was just one of a handful of federal African-American judges nationwide. In January 1971, Judge Keith came out strongly against the government and Mitchell’s entire legal theory.

“The Fourth Amendment protects a defendant from the evil of the uninvited ear.” – US District Judge Damon Keith

“An idea which seems to permeate much of the Government’s argument is that a dissident domestic organization is akin to an unfriendly foreign power that must be dealt with in the same fashion,” Judge Keith wrote in his decision. “There is a great danger in an argument of this nature, for it strikes at the very constitutional privileges and immunities that are inherent in United States citizenship.”

Reminding everyone of the language of the Katz decision, the judge recalled that “the Fourth Amendment protects a defendant from the evil of the uninvited ear.”

The Department of Justice appealed the case to the 6th US Circuit Court of Appeals, which upheld Judge Keith’s ruling. The appeals court famously found, in what came to be known as the Keith case (rather than its official and cumbersome name: United States v. United States District Court), that there was not “one written phrase” in the Constitution or statutes to support the Justice Department’s view. The government appealed up to the Supreme Court, which again, denied the government’s efforts.

“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power,” Justice Lewis Powell wrote in the unanimous 8–0 opinion. One would think that would have closed the book on such wiretapping. But as we’ll see, the government continued to find innovative ways to circumvent the courts.

Learn more about Judge Damon Keith’s life story in a new, award winning documentary – Walk With Me: The Trials of Damon J. Keith, Directed and Produced by Jesse Nesser.

(Photo taken in 1965, Courtesy of WSU Press.) From Left: Michigan Supreme Court Justice Otis M. Smith, Damon J. Keith (who was a lawyer in private practice at the time of this photo, and did not become a District Court Judge until 1967), Dr. Martin Luther King Jr. and Michigan Secretary of State Richard Austin.

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