Wednesday, February 12, 2014
Roots of the NSA: How the White Panthers saved the Movement and the FISA court created
Roots of the NSA: How the White Panthers Saved the Movement and the FISA Court was Created
A slice of history reveals the ugliness of the FBI's COINTELPRO campaign to disrupt the important social justice movements that exploded in the 1960s.
On the Monday following the Watergate break-in, the Supreme Court decided U.S. vs. U.S. District Court (Keith) ex rel Sinclair, which struck down the Nixon/Mitchell program of warrantless domestic political wiretapping. The aftermath, leading to Nixon's resignation, revealed the ugliness of the FBI's COINTELPRO campaign to disrupt the civil rights, black liberation, anti-war, youth, women, environmental, LGBT and other social justice movements that exploded in the 1960s.
That led to the Church Commission, which recommended various checks on the FBI's power to disrupt political dissent and the creation of Foreign Intelligence Security (FISA) Court, which is today the subject of great controversy in the wake of Edward Snowden's revelations about the massive data mining and surveillance of U.S. citizens and their communications (not to mention that of the rest of the world). Particularly since 9/11 and the passage of the Patriot Act, progressives and civil libertarians have protested the quasi-police state expansion and militarization of U.S. law enforcement, including infiltration of legal groups and the open quashing of political speech (see Occupy Movement), accompanied by widespread electronic surveillance.
The FISA Court (one of whose first judges was the Honorable Ralph Guy, who was the U.S. Attorney when the Keith case started in Michigan in 1970) supposedly protects U.S. citizens from warrantless electronic surveillance. Progressives have complained that the Court (secretive, one-sided, loaded with compliant judges) is a joke. But it was still not responsive enough for Bush, Cheney, Rumsfeld and Ashcroft and they simply ignored it on many occasions. After the Snowden releases, there have been congressional calls to strength FISA. But with the National Security Agency and the FISA Court judges admitting that even they do not understand how all of these electronic surveillance and data gathering programs work, it is nothing but a fig leaf, and a shriveled one at that. History has shown that we cannot legislate or litigate our way to liberation.
The Beginning: Bombings and Conspiracies
In early August 1970, two thin white guys with Afros and purple T-shirts that said “White Panther Party” (WPP) came into the National Lawyers Guild office in Detroit. A few weeks earlier, Lawrence (Pun) Plamondon, the first white revolutionary in modern times to make the FBI’s Top 10, had been arrested in Michigan’s Upper Peninsula for allegedly throwing a beer can out of a van. He was being driven to a hiding place by Jack Forrest and another member of the WPP. They pled guilty to harboring a fugitive.
Pun, Jack and John Sinclair (at that time doing nine and a half to 10 years in Michigan’s Jackson Penitentiary for two joints) had been charged earlier for the 1968 dynamite bombing of the CIA recruitment office in Ann Arbor. Pun, already facing numerous charges around the county, went underground at the news of the indictment and ultimately to Algeria, where Eldridge Cleaver of the Black Panthers (BPP) was also a fugitive. But there wasn’t any marijuana, alcohol or hippie girls in Algeria, so Pun did not last long. Because the FBI had infiltrated the WPP and their informant was sleeping with Pun’s wife, they were hot on his trail.
The guys who walked into the Guild office were John’s younger brother (Chief of Staff of the WPP) and the Minister of Propaganda. They announced they were going to New York to get Bill Kunstler and Len Weinglass to represent Sinclair and Plamondon. Would I be willing to represent Forrest and act as local counsel? Never having handled a felony or been in federal court (still technically being employed by Legal Services), I naturally said yes. It did not seem like a big risk. Kunstler and Weinglass were the two most prominent lawyers in the country after the Chicago 7 trial. I assumed they would not take the case. I was wrong.
Why me, when they already had Justin (Chuck) Ravitz, who had been representing Sinclair since the days of the Artists’ Co-op in Detroit, was still appealing his last marijuana conviction and attempting to get Sinclair out on bond? The backstory is that a couple of weeks before Pun and Jack were busted, Chuck and I were at a party hosted by a lefty law professor. I had volunteered to open the Guild office in January 1970, and had been doing political misdemeanors (primarily Black Panthers charged with impeding pedestrian traffic with aggressive sales of their newspapers). After a few beers and a few tokes, Chuck and I were bemoaning our clients. He said “I’m really tired of the White Panthers.” I felt the same way about the Black Panthers. We agreed to trade them for the next year. That is how I ended up at the first pre-trial conference with Kunstler, Weinglass, Damon, Keith and Guy.
Trial Court: The Decision
Keith gave us only a couple of months to file our pre-trial motions because all three of the defendants were incarcerated. All of the ordinary motions would be drafted in Detroit. But the electronic surveillance motion was prepared in New York by the Center for Constitutional Rights (CCR). We filed 20 or 21 motions, including one to have the chief witness for the government, David Valler, compelled to submit to a psychiatric examination.
There had been eight bombings in southeast Michigan in the fall of 1968 and Valler, who lived in a combination commune and abandoned house near Wayne State University, was calling the editor of the Detroit News, implicitly confessing. They ran a front page story with Valler’s picture under the headline “Is this the bomber?” Ultimately, according to Forrest, Valler took 40 hits of acid and turned himself in. Valler not only confessed to all the bombings, but implicated John, Jack and Pun in the CIA blast. He got a sweetheart deal and a light sentence.
The News made him its “youth” columnist in the Sunday Magazine, where he dutifully condemned the counterculture and radical politics for the next few years until the case was over. Then he was irrelevant.
We had many people come forward who had known Valler and told us how crazy he was (including stories of how he painted pictures of Jesus with penises on his face, or that he had consumed an extraordinary amount of hallucinogenic and other drugs). That caused us to make the psychiatric motion.
Another Detroit attorney, Neal Bush, drafted a jury challenge in which we claimed that youth was a class and that the systematic exclusion of young people from federal juries constituted discrimination (no one under 21 was allowed to serve).
The government responded and, to our surprise, admitted that there were electronic intercepts of Plamondon. The hearing on the motions was scheduled for early December 1970. That morning, the weather was terrible and the airport was closed. Kuntsler and Weinglass were not going to make it. Bush and I were going to have to argue. Neal told me he had never argued a motion before. I responded that I had never had a federal case.
At the hearing, Judge Keith patiently and politely heard and denied all of our motions, except the one concerning the wiretaps. Since the government had admitted their existence, he ordered them produced. There was another round of briefing regarding the timing and circumstances of the disclosure of the surveillance.
At the next hearing in January 1971, Judge Keith ruled the intercepts illegal as warrantless political surveillance. Thus, the government had to turn over the tapes and we had to have a “taint” hearing to see whether they would affect the trial. Keith was considering having the trial first and then having a hearing to determine if it had been prejudiced by evidence derived from the intercepts. The government, objecting strongly to revealing their contents, assured Keith that Pun was not the target of the intercepts and that it would not affect the trial. Keith still insisted that the tapes would have to be disclosed.
At that point, Guy, apparently on orders from Washington, told Keith that the government did not intend to disclose the wiretaps before or after the trial. Keith looked at the defense and said “Mr. Kunstler, make your motion.” In the face of a dismissal, Guy asked for 48 hours to appeal to the Sixth Circuit for a stay by way of mandamus. They did and it was granted.
We never knew why the Nixon/Mitchell White House/DOJ decided to pick this case in which to take a stand. Similar motions had been filed in other political prosecutions and a courageous federal judge in Los Angeles had ruled against warrantless electronic surveillance of U.S. citizens in a Black Panther case. But that was post-trial and the regular process of appeal was not going to be fast. The government apparently wanted a rapid review and chose the case of this political band of counterculturalists in Michigan. Perhaps they thought that the defense would be weaker than in one of the other big anti-war/conspiracies. Plus, they knew that the tapes were irrelevant to the charges.
The Sixth Circuit
The mandamus was against Keith’s disclosure order. That is how the case came to be known as U.S. vs. U.S. District Court (Keith) ex rel Sinclair. The Sixth Circuit ordered a short briefing schedule and oral argument on the day of the filing of the briefs in February 1971. It was agreed that I would write the mandamus portion of the defendants’ brief and the electronic surveillance section would be written in New York. Kunstler would fly to Cincinnati. I would drive down. We would put the halves together in the morning and then argue that afternoon. Keith did not participate.
I had no clue about mandamus and was working very long hours on all of the other political cases that were being handled by the Guild office. I needed access to a federal law library at odd hours. A Guild member was working for a federal judge and gave me a key to the chambers. I could come and go as I wanted. Security at the courthouse was different in those days.
Technically, I had a good argument that this was not proper case for mandamus. If we could defeat it on technical grounds, the case against our clients would be dismissed. We had to try. But the impetus was with the government. Everyone knew they wanted this case as a ratification of their policies. Accepting the mandamus under a “special circumstances” rubric, the Sixth Circuit decided the case on the merits.
The day before the scheduled argument in Cincinnati, I drove to Columbus to see friends from my VISTA volunteer days. But going down the Interstate to Cincinnati, I hit a patch of black ice, went into the median and rolled four times. The Samsonite briefcase Mother gave me when I graduated from law school shattered and cut off the top half of my right ear. I was taken to the local hospital.
Kunstler, always magnificent in crisis, grabbed a car or a cab in Cincinnati and rushed to the scene of the accident. The originals of my half of the brief were spread along the median in the snow. Bill collected them and took them to a cleaners in Cincinnati, where he had them dried and pressed. He went to court, argued and we won 2-1, former Detroit Police Commissioner Edwards writing for the majority, U.S. vs. U.S. Dist. Ct. (Keith) ex rel Sinclair, 444 F2d651 (6th Cir. 1971).
Back at the Fayette County Memorial Hospital, the switchboard was lighting up as calls poured in from around the country. It did not take them long to figure that not only did I not look like any lawyer they had ever seen, but that I was connected with some radical political case. My doctor clearly did not want me there and kept suggesting that I be taken by ambulance to Columbus to have my ear reattached by a prominent plastic surgeon. I indicated that I understood that the sooner that something was sewed back, the more likely it was that it would be successful. He acknowledged that, but still urged me to go to Columbus.
I asked him about the relative difference in skill between him and the doctor in Columbus. With a supercilious look, he said, “Probably the difference between you and the best lawyer in the country.”
I said, “Well, sew my goddamn ear back on then. I’m one of the best.” He did. It took. Before I left the hospital, he visited and said, “I hope you lose.”
The divisiveness of the question and the degree to which the Nixon administration was prepared to go to defend it was presaged by the final words in his dissent in the Sixth Circuit:
It has been said that wiretapping is a dirty business. Professor Wigmore answered this argument: "But so is likely to be so all apprehension of malefactors. Kicking a man in the stomach is 'dirty business," normally viewed. But if a gunman assails you and you know enough of the French art of savatage to kick him in the stomach and thus save your life, is that dirty business for you?"
On To The Supreme Court
After the victory in the Sixth Circuit, that the government would seek and the Supreme Court would grant certiorari was a foregone conclusion. Once the Court took the case, the forces began gathering. The legendary Arthur Kinoy, one of the co-founders with Kunstler of the CCR and law professor at Rutgers, would argue for the individual Defendants. The brief would be written at CCR, primarily by Peter Bender.
Now Judge Keith decided to directly participate and went to Bill Gossett, one of the name partners at Dykema Gossett (the largest law firm in Michigan and former president of the ABA). Gossett took the case pro bono and engaged Prof. Abraham Sofaer of Columbia Law School to write the brief.
The amici lined up for Sinclair and Keith:
The National ACLU and the ACLU of Michigan;
The Guild and the National Conference of Black Lawyers;
The UAW; and
The American Friends Service Committee.
For the government — none.
Everyone knew this would be a watershed case, particularly with the various streams of political dissent bursting forth with increasing vigor in 1971. The government, determined to maintain the COINTELPRO program against these movements, as its final submission likened the case to the occasions in U.S. history when federal troops had to be called out to quell domestic disturbances, producing a list. Predictably, they were all racial incidents or labor disputes.
Importantly for progressives, all of the big anti-war and Black Panther conspiracy trials around the country were put on hold because similar motions had been made in each of them, with the government uniformly admitting to warrantless wiretaps of the defendants and their organizations. It made no sense for them to move forward in the face of the impending decision in Keith.
The argument was held Feb. 24, 1972. Because I had an appearance in the trial court, I was allowed to sit inside the bar, although I was not admitted to practice in the Supreme Court. In the meantime, in December 1971, the WPP had pulled off the now legendary “Ten (Years) for Two (Joints)” concert in Ann Arbor featuring John Lennon, Yoko Ono, Bob Seger, 5 of the Chicago 8, et al. — a 10-hour extravaganza.
Three days later, the Michigan Supreme Court gave Sinclair bond on appeal as a precursor to declaring the Michigan marijuana law unconstitutional as cruel and unusual punishment, crowning an extraordinary and prolonged effort by Ravitz. As the only free defendant, Sinclair had to be allowed into the argument. He and Leni (Magdalene Sinclair, his wife) sat on two throne-like chairs at the back of the chamber in purple White Panthers shirts.
Erwin Griswold, my law school dean and Nixon’s Solicitor General, refused to argue the case for the Government, bringing in Robert Mardian, head of the Internal Security Division of the DOJ and the first guy gone in Watergate. I later tried to talk to Griswold about it, but he refused. Rehnquist had recused himself because he had helped formulate the policy at the Justice Department. The courtroom was packed and the stage was set.
Mardian was not an accomplished appellate advocate and the Justices pounced on him quickly. As a final ploy, Mardian produced a tape and begged the Justices to listen to it in chambers so they could hear exactly how dangerous these defendants were and why it was necessary for the government to use such means. One of the Justices asked if the government would agree to have the defendants’ lawyers listen with them. Mardian replied that he would agree for Gossett to hear the tapes, but not Kinoy. Thurgood Marshall, who had argued Brown vs. Board of Education with Kinoy in the Supreme Court, turned his chair around and never looked at the government again. Gossett acquitted himself well. But Kinoy was brilliant, going up and down the bench reminding one Justice after another of statements they had made in previous cases that compelled them to rule warrantless wiretapping illegal.
The Keith decision was released on June 19, 1972. The Watergate burglary occurred the night of June 16, 1972, the Friday before. Kinoy always theorized that Rehnquist had tipped someone that they were going to lose on Monday. Thus, the “plumbers” were not putting wiretaps into the Democratic National Committee office, they were taking them out. It is an interesting theory. Regardless, the combination of the decision and Watergate ultimately led to the end of the Nixon presidency and a comprehensive expansion of political rights.
Interestingly, the opinion was written by Lewis Powell, who had given speeches in favor of warrantless wiretapping while he had been president of the ABA. Gossett’s representation of Keith could not have hurt in that regard. It was a unanimous 8-0 decision. But that was not the end of the case.
Quietly, all of the big conspiracy cases, including the Weatherman indictments in Detroit and elsewhere, were dropped. The government could not prove a single case without its illegally obtained evidence or else did not want to suffer further embarrassment and exposure of COINTELPRO, so they abandoned them. That is how the White Panthers and Judge Keith saved the movement from more years of surveillance, COINTELPRO disruption and conspiracy charges.
During the pendency of the appeal, I had a conversation with Guy, still then-U.S. Attorney. He indicated that if we won, he was afraid that it would just drive the practice further underground and make it more clandestine. How prophetic that was! Guy went on to be appointed to the District Court and then to the Sixth Circuit. He has been one of the judges most frequently appointed to sit on the FISA court, which, after the reforms which came out of the exposure of the COINTELPRO program, was supposed to consider applications for intercepts and searches involving foreign threats to domestic security. We now know that under Bush II, even this extremely friendly bench was not considered to be sufficiently malleable for the Ashcroft, Cheney/Rumsfeld security initiatives.
Post-Keith: Sinclair vs. Nixon and the Second Wiretap
Separate litigation referred to as Sinclair vs. Nixon, was initiated by CCR in the D.C. District Court after the decision in the Keith case, claiming that the secret intercepts had violated Plamondon’s Fourth Amendment rights. Through a series of decisions, Nixon was granted presidential immunity and Mitchell qualified immunity. But after the discovery in 1977 through a FOIA of a second secret wiretap on the WPP headquarters from August 1970 through January 1971 through an FOIA request, the suit was amended to add that claim.
Remember that throughout the proceedings in the Keith case the government never disclosed the fact that it was at the very moment he was deciding the legality of warrantless domestic surveillance, the FBI was wiretapping in the very case which was pending before him. Whether Guy knew is a matter of conjecture. As far as I know, he has never said. But it was conducted by the FBI office in Detroit. They regularly reported to Hoover himself (with memos to 126 FBI offices around the country). The transcripts of those taps are still under seal.
That second tap, was never disclosed to the defense, Keith, the Sixth Circuit or the Supreme Court. Technically, the FBI could argue that since the defendants were in prison, they were not the ones who were being targeted. But they frequently called the WPP headquarters from jail. Thus, it was ultimately a deception, orchestrated at least by Mitchell and Hoover. The tap was lifted the day after Keith ruled such intercepts illegal.
The tapes revealed that at least I was overheard. That implicated the Sixth Amendment (confidential relationship between clients and attorneys). Although the communications were with the Defense Committee, rather than with the defendants themselves, they still revealed defense strategy.
Thus, the original case against Nixon in the D.C. was transferred to Michigan. I and one of the original WPP lawyers in Ann Arbor, Dennis Hayes, handled it thereafter. There was another appeal (the third) to the Sixth Circuit on the issue of immunity for the individual FBI agents who had monitored the attorney calls. It was unsuccessful and the case came back for discovery. We had few resources. The WPP itself had long since dissolved and the individual plaintiffs had little or no money. Revolution is not a lucrative vocation.
The FBI agents who were the individual defendants had either retired or spread all over the country. The question was whether the plaintiffs could show that they acted so egregiously that, despite the novelty of the situation, they were liable. Without the ability to pursue expensive discovery, there was no way to adduce such proof. The Court granted summary judgment. The case went back to the Sixth Circuit and was extinguished in 1989.
What Was On the Tapes?
There remains the issue of what was on the original intercepts of Plamondon and what effect it would have had on the trial. The government has never disclosed the contents. A popular theory is that, given the focus on the BPP, the intercepts were of Pun and Eldridge Cleaver calling BPP headquarters in Oakland from Algeria when they were both fugitives. At this time not even Congress knew about the existence of the National Security Agency, exposed in William Bamford’s book The Puzzle Palace. One can understand why the government would not reveal intercepts by a secret communications monitoring agency.
Would the information in the intercepts have tainted the trial itself? Almost certainly not. The Assistant U.S. Attorney assigned to the actual prosecution of the case, told me years later that they would not have tainted the trial. I believe it.
He also claimed he would certainly have obtained a conviction had we ever gone to trial. That is an uncertain proposition. I think Sinclair would have been acquitted and was only thrown into the indictment because he was a nationally notorious figure. Kunstler and Weinglass tried to subpoena John from prison to testify in the Chicago 7 trial on youth culture, but were rebuffed by the good Judge Julius Hoffman.
The only apparent evidence against Sinclair were two FBI memos of interviews with Valler (the snitch) in the Wayne County Jail. In them, Valler indicated that while John was in town for a concert with the MC5 (Kick out the jams, m***erf***ers!), he met Sinclair in an underground newspaper office.
There, Valler claimed that he told John that he had a lot of dynamite and asked if he was interested. Even the FBI reports only claim that Sinclair said he would be interested in some dynamite, but did not want to blow anything up himself. On one other occasion after the bombing itself, Valler claimed that he and Sinclair were in the same room somewhere and that John looked at him meaningfully and nodded yes. Without more, that is not the stuff of conspiracy convictions.
About Jack Forrest, nothing can be said. He has never publicly spoken. He was clearly an acquaintance of Valler’s during the time that the bombings took place in 1968. Plus, he was a member of the WPP. But at the time of the CIA explosion, he was still living in Detroit.
That leaves Pun Plamondon, the flamboyant Minister of Defense for the WPP. He was a wildman. By the time I finished with all of his cases in 1973, I believe we had faced 18 felonies. Emblematic of Pun’s style is his comment in his autobiography, Lost to the Ottawa (he found out that he had been taken away from his unmarried Native American parents and given to a white family), that he was framed for a crime he does not deny committing: “I’m not saying I didn’t bomb the CIA building in Ann Arbor. But I damn sure didn’t tell that government snitch I did."
FATTENING BLOGS FOR SNAKES 2014