Judge Taylor's opinion

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 United States. Thus, in 1787 when they came together to write the constitution, they had learned the critical lesson that any system could conceivably degenerate into tyranny. That was the point of the correspondence between Jefferson and Madison the next year, which I have already quoted in an earlier post (of December 25, 2005), which began when Jefferson complained of the absence of a Bill of Rights. Defending the omission, Madison explained, first, that he had feared that it would be difficult to get all the necessary rights improved, and secondly, with or without such a bill, a government in times of crisis would always find some way to violate it. Jefferson replied wisely that while Madison was not wrong, the existence of a Bill of Rights would make it harder for a government to trample upon them during a crisis and easier to restore them when it was over. No wiser prediction, I venture to say, ever came from the hand of that remarkable man.

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 25^th 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 Federal District Court ruled the Bush Administration’s warrantless wiretapping program illegal. I was inspired by her opinion and am distressed that a variety of legal scholars, including some opposing the program, have claimed that it lacked legal sophistication. Certainly it did not focus primarily on recent precedents, although it cited some of them, nor did it, in accepted legal fashion, attempt to decide the question on the narrowest possible grounds. Instead, Judge Taylor reached back to the origin of the Republic and to the text and essential philosophy of the Constitution to point out that a President, once again, was taking advantage of an emergency to disregard both. I quote a few excerpts:

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. U.S. CONST. Amend. IV.

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. v.

U.S. District Court, 407 U.S. at 328-329 (Douglas, J., concurring).

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 Mansfield, ‘that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.’ (citation omitted). Lord Mansfield’s formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation. Inherent in the concept of a warrant is its issuance by a ‘neutral and detached magistrate.’ (citations omitted) The further requirement of ‘probable cause’ instructs the magistrate that baseless searches shall not proceed. U.S. v. U.S. District Court, 407 U.S. at 316.

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.

Youngstown, 343 U.S. at 589.

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. Youngstown, 343 U.S. at 636-638. But “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the matter.” Youngstown, 343 U.S. at 637 (Jackson, J. concurring). In that case, he wrote that it had been conceded that no congressional authorization existed for the Presidential seizure. Indeed, Congress had several times covered the area with statutory enactments inconsistent with the seizure. He further wrote of the President’s powers that::

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 Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing.

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. Id. at 641.

After analyzing the more recent experiences of Weimar, Germany, the French Republic, and Great Britain, he wrote that:

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. Id. at 652.

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. Youngstown, 343 U.S. at 655 (Jackson,J., concurring).

Accordingly, Jackson concurred, the President had acted unlawfully. In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.

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 United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

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 America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

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 Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

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 Britain—while nowhere near to execution, apparently, as we were first told—reminds us that surveillance of suspicious persons is necessary to guard against new terrorist outrages. That is why an intelligence professionals of my acquaintance defends the President on this point. But I reply that I do not believe that anything needful cannot be done within the law—and that failure to keep it within the law will, human nature being what it is, inevitably lead to gross abuses of executive power sooner or later. And to those legal professionals who found fault with Judge Taylor’s opinion, I can only reply that it is clear enough to be understood by any intelligent high school student, much less a grown citizen—and that, like the finest opinions of Justice Black, it relies above all on the simple tactic of arguing that the Constitution means what it says. If we can come out of the next twenty years having reconfirmed that belief, we will have done very well indeed. The Founders gave us the tools we needed knowing that the task of legally resisting authority would recur, and once again they have been proven right.

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.