Justice v. Justice

Is "national security" a legitimate legal defense against charges of criminal activity? Last week, in two different cases, the Justice Department was answering yes and no.

One case involves John Ehrlichman and three White House plumbers who are appealing their conviction for the break-in at the office of Daniel Ellsberg's psychiatrist. During the trial, the judge refused to allow national security to be used as a defense; but in the appeal argued last week, Ehrlichman et al. renewed their claim that Ellsberg was regarded as a threat to national security, since the White House did not know whether he had stolen other secrets besides the Pentagon papers. The Justice Department, urging that the convictions be upheld, contends that the break-in was plainly illegal and cannot be justified by national security claims.

Ehrlichman's lawyers are vigorously citing another case in the D.C. court of appeals. In that one, the FBI, with approval by then Attorney General John Mitchell, bugged the headquarters of the Jewish Defense League in New York City. New York Attorney Bertram Zweibon, a former J.D.L. member, and others sued Mitchell and the FBI for damages. At the time its offices were bugged, the J.D.L. was harassing Soviet diplomats in the U.S. as part of its efforts on behalf of Soviet Jews. The league lost its case at the trial when the judge agreed with the Justice Department that the bugging was "a proper exercise of the President's constitutional authority to conduct the nation's foreign relations and his power to protect the national security."

The same judges are sitting in both cases, and a Justice Department official, with a lawyer's infinite capacity to slice fine, claims that the two cases are really entirely different. On the one hand, it is not claimed that the President had specifically ordered the Ellsberg breakin; and if he had, standard law-enforcement procedure would have been to go through the Attorney General. On the other hand, the FBI was given authority for the J.D.L. bugging by the Attorney General, who has repeatedly claimed the right to act without a court order in national security cases involving foreign powers. How the judges will react to the asserted distinctions remains to be seen.

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