The Mitchell Doctrine: Another Form of Justice

(The following is the last of a three-part feature analyzing some of the Justice Department's actions against white radicals since the Chicago trial.)

WHEN it comes to twisting the law to the disadvantage of those who are actively opposed to government policies, the Justice Department has shown that it can be quite ingenious. Witness the Mitchell Doctrine, as one of the department's rules governing wire-tapping has come to be known: the Mitchell Doctrine holds that when the Attorney General decides that tapping someone's phone is vital to national security, he can authorize a wiretap without getting the approval of a court. Quite simply, the doctrine states that the Attorney General can overlook the Fourth Amendment when he judges it necessary.

The Mitchell Doctrine was revealed to the world in 1969, when defense attorneys for the Chicago 8 requested that the government reveal how much evidence it had gotten in the case by means of wiretapping. Attorney General Mitchell responded by submitting a lengthy memorandum to Judge Hoffman in which he argued that the government was entitled to bug any person intending to "attack and subvert the government by unlawful means"-without obtaining a warrant. In such cases, the need to protect the national security was of greater importance than the Fourth Amendment's general requirement that the government obtain a warrant before establishing a wiretap. Judge Hoffman accepted the Justice Department position and admitted the evidence obtained by wiretap at the trial. This is a major issue in the Chicago appeal.

In January, another Federal district Court judge, Damon J. Keithe, ruled in a case involving three White Panthers that the Justice Department was not entitled to place wiretaps on domestic "subversives" without a warrant. White Panthers John Sinclair. John Forest, and Lawrence (Pun) Plumondon are on trial in Detroit for conspiring to bomb a CIA office in that city. Plumondon has also been charged with actually bombing the office-on September 29, 1968. Judge Keith ordered the Justice Department to turn over logs from its wire taps to the defendants so that their lawyers could determine whether or not the government is using evidence stemming from illegal wiretaps. The Justice Department-which has asked the 6th Circuit Court of Appeals to reverse Keith's ruling-argued that there is no real difference between foreign and domestic radicals and complained that it will have to drop its case against at least one of the defendants if it is forced to comply with the judge's order.

A district court judge in Los Angeles has also refused to recognize the Mitchell Doctrine. The Los Angeles case involves a Black Panther charged with illegal possession of firearms. The Justice Department is appealing that ruling, also. The case from Chicago, Detroit, and Los Angeles are now being considered at appeals court level, but sooner or later, the Supreme Court will be asked to rule on the legitimacy of the Mitchell Doctrine.

THE Supreme Court itself opened the door for Mitchell in 1967, when it made its original ruling that the Fourth Amendment protects phone conversations from unreasonable search and seizure-just as it protects someone's home. Presumably, the Fourth Amendment protects all phone conversations equally, but when one Supreme Court Justice-Byron White-stated that the Court should not require a warrant in national security cases, only Justices Douglas and Brennan wrote arguments opposing him. Two years later-when the Justice Department was caught using evidence against Muhammed Ali that it had obtained inadvertently through its standard, if crude, practice of wiretapping foreign embassies-the Court refused to decide whether the government had acted illegally or not, saying it had never ruled whether a warrant was or wasn't required in "national security" cases.

Defending the Mitchell Doctrine in a letter to the Washington Post last week, Deputy Attorney General Richard Kleindienst argued that Attorney Generals since Roosevelt's administration have authorized wiretaps without warrants in national security cases. From the time he assumed office, however, Mitchell has been faced with a Supreme Court ruling that requires him to obtain a warrant before making wiretaps. He is therefore the first Attorney General to defy the Fourth Amendment in this matter. He has also found it distressingly convenient, for legal and propagandistic reason, to classify radicals as subversives and to treat their activities as threats to national security.

This device makes it easier for the Justice Department to twist the laws against those who oppose the government's policies and it also provides the government with a way of placing the Left way out on the fringe in the minds of the public. The Nixon Administration is interested both in punishing dissenters and in identifying dissenters as criminals. Both goals are essentially very political.

By continually identifying political dissidents as the "enemy," the Justice Department is able to alienate them from the public. By "exposing" plots here and there, the government makes the anti-war movement seem evil-intentioned and much more violent than it actually is-especially to those who are outside and cannot judge it from personal experience.

THE NIXON Administration has repeatedly sought to identify the entire movement with its most extreme elements-"the violent people," President Nixon called them on Monday. The indictments against Philip Berrigan and five others for conspiring to kidnap Henry Kissinger and to purchase and transport explosives over state lines for the purpose of blowing up heating tunnels in the capital fall into this pattern quite neatly. This does not seem like the behavior one would expect from priests and nuns whose dedication to non-violence is well-known. But the record shows that the government will try anything it thinks it can get away with.