(Trenton Times, Commentary Section, June 22, 1997) Turnabout Makes Believers: A Tale of Law and Politics in Which I Share Newt's Pain By Frank Askin Newt Gingrich and other Congressional leaders have been running around complaining that they are victims of political espionage. First there was Filegate. Then Newt was caught by eavesdroppers on his cell phone. I feel their pain! Some years back I discovered, courtesy of the federal Freedom of Information Act, that the FBI had extensively monitored my political activities from the time I was 18 until I was 25. Of course, there are a few differences between my situation and Newt's. He was inadvertently overheard by a couple of private citizens while he was plotting to violate an official pledge he had made to colleagues in the House of Representatives. I was deliberately followed about the streets of my native Baltimore by paid government agents who apparently disapproved of my civil rights activities at a time when such was considered politically incorrect. And, as near as I can tell, Newt has suffered no adverse consequences whatsoever as a consequence of the violation of his privacy. Indeed, last I noticed he was still Speaker of the House. I, on the other hand, was kept on the F.B.I.'s Security Index -- a list of persons to be rounded up and interned in event of national emergency -- for almost 20 years, and was the victim of at least one attempt to have me fired from a job. (Those details take up the first two chapters of my recently published memoir, Defending Rights: A Life in law and Politics. ) It was my own experience as a target of government surveillance which inspired me to challenge the legality of such action shortly after I graduated from law school in the mid- Sixties. Having learned something about the First Amendment and freedom of speech and association in constitutional law, I could not understand how government agencies could legally justify gathering and maintaining dossiers on individuals merely because of the content of their political beliefs and associations. The chilling effect such programs had on freedom of expression was palpable. My first legal assault on the practice was remarkably successful. It even made the front page of the New York Times when in the summer of 1969 Judge Robert Matthews, then sitting in Hudson County Chancery Division, ordered the state police to destroy their own surveillance records on New Jersey anti-war activists. Unfortunately for me and Newt (and all those Republican bigwigs suddenly concerned about such things as a result of "filegate") the subsequent history of legal challenges to political surveillance practices is not so clear cut. First, the New Jersey Supreme Court decided that Judge Matthews had acted precipitously on a motion for summary judgment and remanded the case for a plenary trial. In the meantime, I had filed an almost identical suit against the United States military in the federal District Court in the District of Columbia seeking an injunction against the Army's domestic intelligence program. It was in the latter case that I first crossed swords with a gentleman named William Rehnquist, who was at the time an Assistant Attorney General in the Nixonian Justice Department. Attorney Rehnquist represented the government in hearings on the Army's Domestic Intelligence Program conducted by a Senate Judiciary Subcommittee shortly after the District Court had dismissed my complaint. It was in that hearing that lawyer Rehnquist debated with the late Senator Sam Ervin about the scope of the Army's surveillance program and the justiciability of the case of Tatum vs. Laird then pending before the Court of Appeals. When the Court of Appeals reversed the District Court's ruling, the Supreme Court granted the government's petition for review. But by the time I stood before the high court to argue the case, William Rehnquist was already there -- in a black robe. And Justice Rehnquist, rejecting pleas for his recusal, cast a deciding vote in the 5-4 decision holding the case was not justiciable -- just as attorney Rehnquist had argued at the Senate hearing. As I told the Senate Judiciary considering Justice Rehnquist's nomination to be Chief Justice 14 years later: It was as if Billy Martin had resigned as manager of the New York Yankees after the sixth game of the World Series and taken the job of umpire for the seventh game. The consequence of Justice Rehnquist's action is that after all these years it is still unsettled whether government agencies violate the First Amendment when they engage in the collection and maintenance of information about how individuals' publicly express themselves. Since the Supreme Court ruled such claims were not justiciable, such practices cannot effectively be challenged in the absence of independent evidence that the government additionally engaged in separately illegal conduct -- such as an illicit search or wiretap. One personal consequence of the Tatum decision and the increasing difficulty of protecting constitutional rights in a Rehnquist-dominated federal judicial system was that I began focusing more of my efforts for legal reform in the legislative and political arenas. Although it was becoming harder to successfully litigate issues such as political surveillance in the courts, the attendant publicity (and public outrage) had made government agencies more wary of engaging in such activities (or at least more careful about concealing them). Partly as a result of the Tatum litigation, Congress actually adopted the Federal Privacy Act, making it illegal for a federal agency to collect or maintain information on how individuals exercise rights protected by the First Amendment. Of course, the FBI has effectively ignored the law with the acquiescence of judges mainly appointed by conservative Republican Presidents. At least the companion Freedom of Information Act made it more difficult for the FBI to conceal its activity and encouraged additional public opposition to such practices. Personally, after two unsuccessful efforts to get elected to Congress, I began working for it in my off hours (summers, academic leaves. etc.). As special counsel to the House Subcommittee on Legislation and National Security, I actually found myself with oversight responsibilities of the very intelligence agencies which for so long had been overseeing me! It was personally quite satisfying to make the FBI and CIA officialdom squirm to explain why they regularly ignored legislative mandates in the area of intelligence gathering and secrecy, but, during the Reagan and Bush years, not very successful in changing behavior. Each time the FBI was caught doing something it wasn't supposed to, there were embarrassed promises not to do it again -- which of course were quickly ignored. When the Committee Chairman (Rep. John Conyers Jr. of Michigan), along with Rep. Don Edwards of California, introduced legislation to strengthen the Privacy Act and let the FBI know that Congress really meant what it said, the reaction of Republican members was total indifference. That is why I find it so ironic that Republicans are suddenly exorcized about political surveillance. The party that gave us Richard Nixon and his "enemies list" and cheered on J. Edgar Hoover when he used the FBI as a political strike force has suddenly got religion. So maybe "filegate" and "newtgate" weren't such bad things after all! ___________ FRANK ASKIN, professor of law at Rutgers Law School, Newark, and General Counsel of the American Civil Liberties Union, is the author of "Defending Rights: A Life in Law and Politics," published in February by Humanities Press, Atlantic Highlands, N.J.