In the Constitution and the Bill of Rights, the Founding Fathers set forth a vision of a new form of government and gave their descendants the best tools that they could to preserve it. Their work reflected their own painful experiences. Until the 1770s, they had believed that they lived under the most perfect form of government yet devised, the unwritten English constitution, which appeared to guarantee them a series of critical rights. As it turned out, however, that constitution had not prevented George III from imposing tyranny over the
From the late 1790s to the Civil War, the two world wars and the Vietnam era, the legislative, executive and judicial branches have frequently announced that the Constitution does not mean what it says and that Americans may be imprisoned for speech, forbidden to read embarrassing material in newspapers, subjected to warrantless surveillance and harassment by the authorities, or even interned with trial in concentration camps. Such experiments, however, have usually been brief, and have come to an end thanks to the political process or the Supreme Court, which has turned these blots upon our history into occasions for reaffirming the principles of the Founders and explaining how and why they came into being. In my post of December 25th last, I quoted two of the most moving such Supreme Court opinions: ex parte Milligan, in which the post-civil war court held that an accused Confederate sympathizer could not be tried and condemned to death by a military court while civil courts were sitting, and Justice Hugo Black’s magnificent 1971 opinion in the Pentagon Papers, in which he commended the Washington Post and the New York Times for doing exactly what the Founders had hoped and trusted they would do.
Something similar happened last week, in my opinion, when Judge Anita Taylor of the
V. The Fourth Amendment
The Constitutional Amendment which must first be discussed provides: The right the of people to be secure in their persons, houses, papers,and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This Amendment “. . . was specifically propounded and ratified with the memory of . . .Entick v. Carrington, 95 Eng. Rep. 807 (1765) in mind”, stated Circuit Judge Skelly Wright in Zweibon v. Mitchell, 516 F.2d 594, 618 n.67 (D.C. Circ. 1975) (en banc) (plurality opinion). Justice Douglas, in his concurrence in the Keith case, also noted the significance of Entick in our history,stating:
For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment. In Entick v. Carrington (citation omitted), decided in 1765, one finds a striking parallel to the executive warrants utilized here. The Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seize libelous material and libellants of the sovereign. Entick, a critic of the Crown, was the victim of one such general search during which his seditious publications were impounded. He brought a successful damage action for trespass against the messengers. The verdict was sustained on appeal. Lord Camden wrote that if such sweeping tactics were validated, then the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.’ (citation omitted) In a related and similar proceeding, Huckle v. Money (citation omitted), the same judge who presided over Entick’s appeal held for another victim of the same despotic practice, saying ‘(t)o enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition . . .’ See also Wilkes v. Wood (citation omitted),
. . . [t]he tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists, have been recognized as the primary abuses which ensuredthe Warrant Clause a prominent place in our Bill of Rights.
U.S. District Court, 407
Justice Powell, in writing for the court in the Keith case also wrote that:
Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. ‘It is not fit,’ said
The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the power to search would not continue in our new nation.”
After reviewing the history and provisions of the FISA law, the act governing wiretaps of communications with foreign governments which the Administration claims the right to disavow, she turned to another basic constitutional principle.
VII. The Separation of Powers
The Constitution of the United States provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . .” It further provides that “[t]he executive Power shall be vested in a President of the United States of America.” And that “. . . he shall take care that the laws be faithfully executed . . . .”
Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants. The concept that each form of governmental power should be separated was a well-developed one. James Madison wrote that:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. The Federalist, 47, at 301 (James Madison).
The seminal American case in this area, and one on which the government appears to rely, is that of Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) in which Justice Black, for the court, held that the Presidential order in question, to seize steel mills, was not within the constitutional powers of the chief executive. Justice Black wrote that:
The founders of this Nation entrusted the law-making power to the
Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.
Justice Jackson’s concurring opinion in that case has become historic. He wrote that,although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers.
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of
And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated.
After analyzing the more recent experiences of
This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the ‘inherent powers’ formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience.
Justice Jackson concluded that:
With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
In conclusion she addressed the other favorite argument of the Bush Administration, that of the inherent power of the Commander in Chief.
IX. Inherent Power
Article II of the
The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The Government appears to argue here that, pursuant to the penumbra of constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in
We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the
Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been violated by the Executive’s TSP. As the court states in Falvey, even where statutes are not explicit, the requirements of the Fourth Amendment must still be met. And of course, the Zweibon opinion of Judge Skelly Wright plainly states that although many cases hold that the President’s power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements.
The argument that inherent powers justify the program here in litigation must fail.
I first heard of Ex Parte Milligan from Senator Sam Ervin, a North Carolina Democrat who had been a determined opponent of civil rights legislation, who called it the greatest opinion in the history of the Supreme Court during the Watergate hearings. I find it a moving tribute to the universality of the principles of the American government that Judge Taylor, a black woman of 73 years old who grew up in the era of segregation, would also cite that magnificent opinion in affirming the limitation which the Founders wanted to put upon all executive power for all time.
The recently uncovered terror plot in
Americans have also hoped, since the Revolutionary War, that they might establish new and more humane standards of warfare. News today also raises that issue, but I shall have to leave it for later. This is the second long post of this weekend. I am gratified by the recent increase in visitors and I hope you all will do what you can to continue it.