Lawyer Raps Rehnquist for Vote in Army Spying Case

A lawyer who fought domestic spying by the Army in the early 1970s accused chief justice nominee William H. Rehnquist Thursday of a “shocking breach of judicial ethics” for casting the deciding vote in favor of a government program Rehnquist had helped create.

As a top attorney in the Richard M. Nixon Administration’s Justice Department, Rehnquist said that the Army “may assist” in collecting intelligence on opponents of the Vietnam War, according to a 1969 memo provided to the Senate Judiciary Committee last month. Two years later, Rehnquist defended the spying program in a hearing before a Senate committee that was investigating the matter.

The issue of Army spying reached the Supreme Court in 1972, the same year Rehnquist took his seat on the bench. In a 5-4 vote, with Rehnquist in the majority, the high court voted to dismiss the case against the government before trial.

Ethics Violation Claimed

Frank Askin, counsel for the plaintiffs in the case, Tatum vs. Laird, said Thursday that Rehnquist “violated the most elementary and basic canon of judicial ethics--that no one can be both an advocate and a decision-maker in the case.”

The Supreme Court’s ruling reversed an appeals court order that would have permitted a full trial on the Vietnam War-era protesters’ contention that such domestic spying was unconstitutional. The Nixon Administration had appealed that decision to the high court. Had Rehnquist withheld his vote--as most attorneys had expected him to do--the tie vote would have allowed the trial to proceed.

“Based on what we have learned, it now appears that, if we had proceeded to discovery, William Rehnquist might have wound up as a defendant in this case,” said Askin, now a law professor at Rutgers University who is running as a Democrat for Congress in New Jersey.

Spoke at News Conference

He made his comments Thursday at a Capitol Hill news conference during which a series of civil rights advocates denounced Rehnquist’s record on the high court. The critics of President Reagan’s nominee have stepped up their attacks as the Senate is set to begin debate on the conservative justice next week.

Askin contended that his challenge to the Rehnquist nomination is based on judicial ethics, not politics.

“What I find especially startling is the audacity of the Rehnquist supporters who now claim that the opposition to his nomination is ideologically founded,” he said. “I was not testifying about his ideology. I was testifying about his faulty judicial temperament and his extreme partisanship.”

In the months after the court dismissed the Tatum case in 1972, the American Bar Assn. approved a strengthened policy statement saying that “a judge formerly employed by a governmental agency . . . should disqualify himself in a proceeding if his impartiality might be questioned.”

Sought to Justify Action

Aware of the judicial controversy, Rehnquist in October, 1972, issued a highly unusual statement from the court in an effort to justify his action. He described his Senate appearances as simply “a discussion of the applicable law,” not an advocacy of a particular view or an opinion on an actual case.

However, he did refer specifically to the case of Tatum vs. Laird, which was before an appeals court at the time of his testimony before the Senate in 1971. Rehnquist said he did not believe that citizens could “enjoin the gathering of information by the executive branch where there has been . . . no pending action against any of the individuals on the part of the government.”

That was essentially the view that the high court adopted when it dismissed the case.

“It appears that he (Rehnquist) was an active player in the program we were challenging,” Askin said Thursday.

Sen. Leahy’s Inquiry

Although the issue was raised during Rehnquist’s hearings before the Senate Judiciary Committee, his role in the case has not figured prominently in the confirmation process.

Only Sen. Patrick J. Leahy (D-Vt.) inquired at length about the matter. Before the committee vote in August, he said that Rehnquist’s failure to explain his action persuaded him to vote against the nomination.