Justice Douglas' Condemnation of Government Surveillance

The Sixth Circuit Court of Appeals decision yesterday to dismiss a lawsuit over warrantless wiretapping stirred up a feeling of deja vu in this old sixties/seventies activist. There was already a case that poured over technicalities such as the Sixth Circuit invoked in the ACLU case against NSA wiretapping.

The case was Laird v. Tatum, 408 U.S. 1 (1972). Just as in the recent ruling, the then Burger Supreme Court ruled, in a case involving Army Intelligence surveillance of domestic political activities, on procedural grounds. In the current case, Sixth Circuit Judge Julia Smith Gibbons maintained "the plaintiffs have failed to provide evidence that they are personally subject to the TSP [Terrorist Surveillance Program]. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory...."

This was the Burger court's decision in Laird v. Tatum as well. Join me in exploring the powerful denunciation of this judicial "logic" by the great Supreme Court jurist William O. Douglas.

Per Wikipedia:

Laird v. Tatum, 408 U.S. 1 (1972) was a case in which the United States Supreme Court dismissed for lack of ripeness a claim in which the plaintiff accused the U.S. Army of alleged unlawful "surveillance of lawful citizen political activity." The Court determined that the plaintiff's claim was based on the fear that sometime in the future the Army might cause harm with information retrieved during their surveillance, but that there was no present threat. Therefore, the claim was too "speculative"....

The dismissal was made possible by the timely nomination by Nixon of Assistant Attorney General William Rehnquist to the Supreme Court. Rehnquist had previously testified to Senator Sam Ervin's committee that there were no "serious constitutional problems with respect to collecting data or keeping under surveillance persons who are merely exercising their right of a peaceful assembly or petition to redress a grievance." He further stated that he felt that Laird v. Tatum should be dismissed on the procedural ground that the plaintiffs lacked standing to sue.

The Army Intelligence Scandal

Along with many other scandals of that era, the revelation that military intelligence agents had infiltrated much of the protest movement and civil liberties organizations of that time caused a big ruckus. As even a military intelligence officer involved in these activities recalled some years later, in an article by Ralph Stein at Pace Law School in 1973:

Laird v. Tatum, a class action challenge to military surveillance of civilian politics, demonstrates with frightening precision the degree to which the force of protection can and has imperiled the instrument of freedom....

Stein explains how another military intelligence officer (who was also a lawyer), Christopher Pyle, blew the whistle in a Washington Monthly article in 1970, "CONUS Intelligence: The Army Watches Civilian Politics". Pyle had written that

"[the U.S. Army has been closely watching civilian political activity within the United States. Nearly 1,000 plainclothes investigators . . . keep track of political protests of all kinds-from Klan rallies in North Carolina to antiwar speeches at Harvard."

Stein added more revelations from his an amici curiae filing by twenty-nine former Military Intelligence officers:

The amici, twenty-nine former MI officers and enlisted personnel, urged the Court to allow the plaintiffs an opportunity to present witnesses and evidence in the trial court. They informed the Court that far from limiting its activities to clipping newspapers, MI, among other things, infiltrated agents into Resurrection City, had agents pose as newsmen with bogus identification cards to obtain information from unsuspecting civilians during protests had infiltrated the headquarters of the National Mobilization Committee to End the War in Vietnam, had penetrated the Colorado Springs Young Adults Project and had assigned agents to stake-out Martin Luther King's grave to determine who came to the graveside.

Douglas' Dissent

Justice William O. Douglas, one of the greatest of our Supreme Court judges, and a powerful proponent of individual liberties, wrote a strong dissent to the Burger court's majority opinion in Laird. He was joined by Justice Brennan.

It is worth following Douglas's reasoning here. The ACLU and other interested parties, including educated and interested readers here, should pay heed to Douglas's argument.

Douglas wrote (emphases in bold added):

The claim that respondents have no standing to challenge the Army's surveillance of them and the other members of the class they seek to represent is too transparent for serious argument. The surveillance of the Army over the civilian sector - a part of society hitherto immune from its control - is a serious charge....

One need not wait to sue until he loses his job or until his reputation is defamed. To withhold standing to sue until that time arrives would in practical effect immunize from judicial scrutiny all surveillance activities, regardless of their misuse and their deterrent effect.... as we put it in Baker v. Carr, 369 U.S. 186, 204, the gist of the standing issue is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."

The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army's surveillance. First, the surveillance was not casual but massive and comprehensive. Second, the intelligence reports were regularly and widely circulated and were exchanged with reports of the FBI, state and municipal police departments, and the CIA. Third, the Army's surveillance was not collecting material in public records but staking out teams of agents, infiltrating undercover agents, creating command posts inside meetings, posing as press photographers and newsmen, posing as TV newsmen, posing as students, and shadowing public figures.

Finally, we know from the hearings conducted by Senator Ervin that the Army has misused or abused its reporting functions....

Douglas concluded with a stern and chilling warning, one which we would do well to consider over thirty years since it was set to paper:

This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance.

I was surprised to see none of our legal eagles here at Daily Kos refer to this pivotal case in our nation's recent history, nor to Justice Douglas's ringing dissent, calling as it does for the right to live free from government surveillance, and making the case that we ALL have standing to present as potential victims of government intrusion and spying.

I hope this diary gets large circulation, and Douglas's dissent wide dispersal in the fight to overturn the Sixth Circuit's narrow and chilling decision.