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ACLU Files Suit over NSA Surveillance Program:
From the ACLU's press release:
The lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East. Because of the nature of their calls and e-mails, they believe their communications are being intercepted by the NSA under the spying program. The program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy.
The complaint is available here. The causes of action are the Fourth Amendment, the First Amendment, the Administrative Procedure Act, and a general right against the operation of executive actions alleged to violate the separation of powers.
Traveler:
Well, this should give EV much more fodder in the form of vigorous attacks and criticisms of the ACLU.
1.17.2006 2:35pm
Roger (mail):
This will be a wonderful opportunity for people that oppose the ACLU to read the complaint and provide commentary on why each part may be correct or incorrect.

I look forward to an interesting legal discussion free from political points or ACLU-related syndromes.

(But, I think they will just make statements based on what other pundits say.)
1.17.2006 2:36pm
Just an Observer:
1) Does anyone believe either of these plaintiffs can assert standing successfully?

2) Meanwhile, former Vice President Gore yesterday called for a special counsel to investigate the controversy, presumably focusing on the criminal side of the issue. Aside from the politics of such a proposal, would it even be legally viable? Since the attorney general already has declared the surveillance program to be lawful, could a special counsel (the AG's subordinate) pursue a different legal theory in the courts?

(Sorry for the repetition. The current thread, directly related to my first question, did not exist when I posted these questions before.)
1.17.2006 2:41pm
Apodaca:
Whatever else you may think -- and a lot comes to mind -- you really have to hand it to the ACLU for roping in Bamford and Hitch as plaintiffs.
1.17.2006 2:44pm
Bob Bobstein (mail):
And Larry Diamond, ex-Bush administration advisor.
1.17.2006 2:48pm
Just an Observer:
When I referred to "either of these plaintiffs" in my previous post, I was talking about both the ACLU lawsuit and a similar action filed by the Center for Constitutional Rights.
1.17.2006 2:52pm
David Matthews (mail):
From the complaint:

"61. The Program is substantially impairing plaintiffs’ ability to obtain information from sources abroad, to locate witnesses, to represent their clients, to conduct
scholarship, and to engage in advocacy."

It would seem to me that the program was impairing nothing, until its existence was divulged. How can secret intercepts of information impair plaintiffs' ability to obtain such information (except insofar as the obtained information may lead to the detention of "sources abroad"), as long as the interception remains secret? It is not the "spying" that impairs the plaintiffs' ability to do their work, but rather the "leaking." So shouldn't the ACLU, et. al., be suing the leaker?
1.17.2006 2:52pm
Nobody Special:
Hello unable to demonstrate an injury and goodbye standing to sue!
1.17.2006 2:54pm
Roger (mail):
This will be sort of fun, because although the court can inquire into whether the individuals have standing to sue, such an inquire will depend on getting discovery into this NSA program. I imagine that the government, to avoid divulging the way that it runs the program could stipulate that there is a, say 75% chance, that one of the parties has been eavesdropped upon, and then argue that it was still legal.
1.17.2006 2:55pm
Roger (mail):
Mr. Matthews, While the leaker may, in fact, be a “but for” cause of the plaintiff’s alleged injuries, the NSA would also be a cause of it (at least for standing purposes). Ironically, if the administration had continued to deny the program, perhaps there might be a better case, under your logic, that there was no standing.
1.17.2006 2:57pm
Daniel Chapman (mail):
Not a lot of legal analysis to go on, actually... 50 or so pages of plaintiff resumes and allegations of how their great humanitarian work might have led to their being eavesdropped on.

Doesn't US v. Ramsey say that border searches of international snail mail is constitutional because there's no reasonable expectation of privacy? That kind of tosses out the first and fourth amendment arguments... as always, it hinges on FISA, which is far too complicated for me to examine in my free time for fun.

I did see that the complaint noted the exception to FISA when a formal declaration of war has been made... Does that mean fifteen days after the declaration or surveillance can take place for a period of up to fifteen days when a declaration has been made? Looks like they'll have to challenge the validity of the War on Terror in order to HOPE for success... but that might have been their intention from the start looking at that plaintiff list.
1.17.2006 3:03pm
Bruce Hayden (mail) (www):
So, let's see if I understand this. Because of news reports all these guys and gals are sure, absolutely sure, because of all the great things that they do in life, that they were evesdropped upon illegally. Now, they don't have any evidence of this outside of news reports illegally obtained from leaked sources, but they are absolutely sure that they have been harmed. Not quite sure how, of course. But seriously harmed.

So, among other things, they want discovery to discover if indeed this illegally disclosed classified information is indeed true. Because, after all, they were harmed by all this surveilance, that they are sure happened because the news reports reported it.

I would think that the weak link is that that they have no certainty that they were surveiled. They are just guessing, and then looking for discovery of classified information to prove out their cases.
1.17.2006 3:22pm
Bob Bobstein (mail):
Bruce Hayden-- are you arguing that there is "no controlling legal authority" that can review the NSA domestic surveillance program? Your rationale would appear to apply to any prospective plaintiff.
1.17.2006 3:26pm
PersonFromPorlock:
Looks like they'll have to challenge the validity of the War on Terror...

Amusing fact: if you put the Authorization for the Use of Military Force in Iraq on the screen in a fairly small window, it looks exactly like a software licensing agreement.
1.17.2006 3:26pm
Bruce Hayden (mail) (www):
No, not really, but rather pointing out that this is a fishing expedition, but in this case, the fishing is of classified information. For the most part, I also question whether there really is a case or controversy, given the lack of apparent harm.

That said, CAIR as a plaintiff really does get at the issue. I have no doubt that if the program is anywhere near what it has been advertised by the press as, that some members of CAIR probably have been surveiled, simply because some of its members probably have talked to the enemy. Not most of its members, of course. But some.

Most of the rest of the plaintiff's are in my mind pretty bogus. I would think that they were thrown in to keep it from being solely about Moslems in the U.S. talking to terrorist Moslems overseas, where the national security concerns would, IMHO, be greatest.
1.17.2006 3:36pm
Hans Bader (mail):
What, no FISA claim?

I don't see a viable Fourth Amendment claim, but I can see a colorable argument that FISA has been violated. (And I don't buy the idea that FISA itself is an unconstitutional infringement on executive power).

Then again, maybe there's no private right of action under FISA (especially after Gonzaga and Sandoval).

I also wonder about standing -- why do these particular plaintiffs think they are the ones being subject to surveillance?

And if they had sought damages, I think qualified immunity would pretty clearly bar it.
1.17.2006 3:48pm
Roger (mail):
And it only takes one member to get standing. I think the lawyers – the ones with actual immigration and/or criminal clients – actually have standing, too. Their ability to interact with their clients might be injured if they think that the government is using this program to piece atty-client privilege.
1.17.2006 3:49pm
Bruce Hayden (mail) (www):
I think the other thing that pushed my button was the incorporation of a 1st Amdt. claim. Yes, the ACLU's mission is/was supposed to be that of protecting the 1st Amdt. But it seems to be that these very important people have very important reasons to be talking to our enemy at a time of war, and that because both they and their reasons are so important, it is none of our country's business that they are even talking to our enemies, never mind that they presented no information that the NSA might have done anything beyond noting that they called or were called by XYZ foreigner who happened to be on our hot list of prime targets.

I am not nearly as bothered by the 4th Amdt. claim. It hits closerer to the real (IMHO) issue. But the 1st Amdt. claims reveals a sort of absolutism that does bother me. I don't think that we do have, or should we have, the right to unlimited speech with our enemies at time of war.

I haven't figured out the Administrative Procedures claim. It is hard wading through all those impressive resumes of all those great people being somehow mysteriously harmed by this program. Maybe tonight.
1.17.2006 4:01pm
Greedy Clerk (mail):
Looks like they'll have to challenge the validity of the War on Terror in order to HOPE for success

Of course. Everyone knows that you can't win a war unless you blatantly violate the constitution and other federal law. It's just so obvious. Due Process, schmue Process. Everyone knows the reaosn we won WWII was because we threw the Japs into internment camps. Michelle Malkin and Glenn Reynolds told me so. Thus, we must do the same now. Dang libruls.

1.17.2006 4:21pm
J..:
Then again, maybe there's no private right of action under FISA (especially after Gonzaga and Sandoval).

FISA provides a remedy. The problem is that the wiretaps were not done through FISA; therefore, a violation of FISA won't provide a remedy to an injured party.
50 U.S.C. § 1810:

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.
1.17.2006 4:30pm
Just an Observer:
J.."FISA provides a remedy. The problem is that the wiretaps were not done through FISA; therefore, a violation of FISA won't provide a remedy to an injured party."

The way I read the FISA section you quoted, and Section 1809, someone who is a victim of warrantless surveillance that legally required a FISA warrant can sue for damages, if they can clear the right hurdles.

But the plaintiffs are not seeking damages; they are seeking an order to have the NSA program halted. That is the rationale, I think, for going through the Administrative Procedure Act. That cause of action, in turn, is based in part on the claim that FISA and Title III taken together were violated.

I still think the plaintiffs have an uphill fight to establish standing.
1.17.2006 6:40pm
Antinome (www):
It seems to me that under U.S. v. Ramsey the 1st amendment claim may be the beter of the claims since the Court specifically noted that the postal inpsectors were not allowed to read the mail.

The Court stated:

Accordingly, we find it unnecessary to consider the constitutional reach of the First Amendment in this area in the absence of the existing statutory and regulatory protection. 18 Here envelopes are opened at the border only when the customs officers have reason to believe they contain other than correspondence, while the reading of any correspondence inside the envelopes is forbidden. Any "chill" that might exist under these circumstances may fairly be considered not only "minimal," United States v. Martinez-Fuerte, 428 U.S. 543, 560 , 562 (1976); cf. United States v. Biswell, 406 U.S. 311, 316 -317 (1972), but also wholly subjective. 19



Listening in on the contents of international communication without a warrant has the potential for a significant chilling effect.
1.17.2006 6:59pm
Mona (mail):
Looks like they'll have to challenge the validity of the War on Terror in order to HOPE for success... but that might have been their intention from the start looking at that plaintiff list.

Yes, because everyone knows that Plaintiff Christopher Hitchens has opposed Bush's foreign policy every step of the way. No one on the planet more despises the War in Iraq, and more loves Islamic terrorists, than Hitch.

One can, you know, support Bush on Iraq and still not wish to see the Executive hold the powers of a monarch. I hope they dodge the standing bullet, but I do see the problem.
1.17.2006 7:12pm
Just an Observer:
Roger: "...I imagine that the government, to avoid divulging the way that it runs the program could stipulate that there is a, say 75% chance, that one of the parties has been eavesdropped upon, and then argue that it was still legal."

I would not expect the government to do any such thing. I think they will fight hammer-and-tong on the standing issue and any other grounds they can find to avoid reaching the merits of the legality of the NSA program.

It is one thing to make Bush's legal case from the White House podium, on TV, in op-ed pages and in a letter to Congress; prevailing in court with those legal arguments is rather more difficult.
1.17.2006 7:41pm
ficus:
What happens if this is adjudicated on the merits, and the president loses? Does he just stop it? Doesn't he just make some minor tweaks and continue it? It is secret, after all, so who is to know. And if this comes to light, he says, "It's not the same; we have heard the court and adjusted; the current program passes muster." And by about that time, he is handing over to a successor.

Trying to stop secret security programs by going to court is just whack-a-mole for lawyers. A more effective move would be to persuade Congress to defund the NSA. If you could.
1.17.2006 8:44pm
Neal Lang (mail):
So, let's see if I understand this. Because of news reports all these guys and gals are sure, absolutely sure, because of all the great things that they do in life, that they were evesdropped upon illegally. Now, they don't have any evidence of this outside of news reports illegally obtained from leaked sources, but they are absolutely sure that they have been harmed. Not quite sure how, of course. But seriously harmed.

Perhaps they have prove of the alleged harm based on the fact that their overseas terrorist sources have refused to take their calls since the the leak of the NSA program. Maybe they can convince these "terrorist" sources to be witnesses on behalf of the plaintiffs in this lawsuit.
1.17.2006 9:18pm
Neal Lang (mail):
Of course. Everyone knows that you can't win a war unless you blatantly violate the constitution and other federal law. It's just so obvious. Due Process, schmue Process. Everyone knows the reaosn we won WWII was because we threw the Japs into internment camps. Michelle Malkin and Glenn Reynolds told me so. Thus, we must do the same now. Dang libruls.

Just what aspect of the Constitution makes you believe that the Judiciary can trump the Commander-in-Chief when comes gathering "military intelligence" on the enemy and their agents during the time of war? The clearest expression in the Constitution with regards to "Due Process" vs. CiC war powers is found in Article I, to wit:
[Section 9.]
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Without Writ of Habeas Corpus, any "Due Process" to be accorded to "terrorists" and their "agents" is quite moot. Just ask Chief Justice Taney about his efforts to apply "Due Process" on behalf of Maryland "Copperheads" during the early days of the Civil War. Or the "Due Process" accorded the various "Tories" during the Revolutionary War by the Continental Congress under the The Tory Act of January 2, 1776, to wit:
Resolved, That it be recommended to the several Committees, and other friends to American liberty in the said colonies, to treat all such persons with kindness and attention, to consider them as the inhabitants of a country determined to be free, and to view their errors as proceeding rather from want of information, than want of virtue or public spirit, to explain to them the origin, nature and extent of the present controversy, to acquaint them with the fate of the numerous petitions presented to his Majesty, as well by Assemblies as by Congresses for reconciliation and redress of grievances, and that the last from this Congress, humbly requesting the single favor of being heard, like all the others has proved unsuccessful; to unfold to them the various arts of administration to ensnare and enslave us, and the manner in which we have been cruelly driven to defend by arms those very rights, liberties and estates which we and our forefathers had so long enjoyed unmolested in the reigns of his present Majesty's predecessors. And it is hereby recommended to all Conventions and Assemblies in these colonies liberally to distribute among the people the Proceedings of this and the former Congress, the late speeches of the great patriots in both houses of parliament relative to American grievances, and such other pamphlets and papers as tend to elucidate the merits of the American cause. The Congress being fully persuaded that the more our right to the enjoyment of our ancient liberties and privileges is examined, the more just and necessary our present opposition to ministerial tyranny will appear.

And with respect to all such unworthy Americans, as regardless of their duty to their creator, their country, and their posterity, have taken part with our oppressors, and influenced by the hope or possession of ignominious rewards, strive to recommend themselves to the bounty of administration by misrepresenting and traducing the conduct and principles of the friends of American liberty, and opposing every measure formed for its preservation and security.

Resolved, That it be recommended to the different Assemblies, Conventions, and Committees or Councils of Safety in the United Colonies, by the most speedy and effectual measures to frustrate the mischievous machinations, and restrain the wicked practices of these men. And it is the opinion of this Congress that they ought to be disarmed, and the more dangerous among them either kept in safe custody, or bound with sufficient sureties to their good behavior.

And in order that the said Assemblies, Conventions, Committees or Councils of Safety may be enabled with greater ease and facility to carry this Resolution into execution, Resolved, That they be authorized to call to their aid whatever Continental troops stationed in or near their respective colonies, may be conveniently spared from their more immediate duty; and the commanding officers of such troops are hereby directed to afford the said Assemblies, Conventions, Committees or Councils of Safety, all such assistance in executing this resolution as they may require, and which, consistent with the good of the service, may be supplied.

Resolved, That all detachments of Continental troops which may be ordered on the business in the aforegoing resolution mentioned, be, while so employed, under the direction and control of the Assemblies Conventions, Committees, or Councils of Safety aforesaid. From: The Tory Act

So much for Posse Comitatus and "Due Process" when it comes to dealing "with respect to all such unworthy Americans" at the time "when in Cases of Rebellion or Invasion the public Safety may require it".
1.17.2006 9:52pm
Neal Lang (mail):
One can, you know, support Bush on Iraq and still not wish to see the Executive hold the powers of a monarch.

When it comes to the President's "War Powers" that is precisely how St. George Tucker, Professor of Law, in the University of William and Mary, and Judge of the General Court in Virginia saw the Commander-in-Chief's "powers", to wit:
The powers, or more properly, the duties, of the president of the United States, are various and extensive; though happily abridged of many others, which are considered as inseparable from the executive authority in monarchies: of these last, we have had frequent occasion to notice such as are transferred by the constitution to the congress of the United States; and of those which are assigned to the president,

1. The first is, That he shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the service of the United States 274, A power similar to that of the king of England, and of the stadtholder of Holland, before the late revolution; yet qualified, by some important restrictions, which I believe were not to be found in either of those governments.

The conduct of the first magistrate of a nation is as frequently liable to censure for his omissions, as for his acts. Whatever, therefore, is left undone, which the public safety may require to have been done, is chargeable upon the neglect of the president, exclusively: whatever may be done amiss is likewise chargeable upon him, in the first instance, as the author and propounder of the measure: although it should afterwards receive the approbation and consent of the senate. Responsibility, then, pursues him in every situation: whether active or passive; sleeping, or awake.
Notes:
274. C. U. S. Art. 2. §. 2.

From: Tucker's Blackstone - Volume 1 — Appendix - Note D - [Section 14 - Executive Powers] 1803

This contrasts to the "Responsibility" of the Judiciary with respect to their conduct in the time of war, which is specifically that they have no "Responsibility", so the idea that they could trump the President, as Commander-in-Chief, in fulfilling his Constitutional Duties regarding the "public safety".
1.17.2006 10:41pm
anon) (mail):
Ficus, Lots of things are wack-a-moles for lawyers. The Supreme court says that certain evidence can’t be used, and the police must follow certain procedures, and the next day every prosecutor in the country is figuring a way around it, and a way to claim that their new procedure is “totally different” then the one recently disapproved of.
1.18.2006 12:51am
Noah Klein (mail):
Neal:

The quote you use in your post contradicts the point you are trying to make:

"yet qualified, by some important restrictions, which I believe were not to be found in either of those governments."

Thus the Commander-in-Chief powers or duties whatever you wish to call them are qualified. One of these qualifications is following the law established by Congress and the Constitution. But your speaker says:

"The conduct of the first magistrate of a nation is as frequently liable to censure for his omissions, as for his acts. Whatever, therefore, is left undone, which the public safety may require to have been done, is chargeable upon the neglect of the president, exclusively: whatever may be done amiss is likewise chargeable upon him, in the first instance, as the author and propounder of the measure:"

This, of course, gives the impression that this speaker thinks the executive, when necessary, should go around the law. This would confirm your impression of the responsibilities of the executive. Yet, the next sentence would imply even if the executive needs to do whatever is necessary to protect the public safety "it should afterwards receive the approbation and consent of the senate." What in the fact that the executive in this case has kept this secret for four years makes you think that he followed the standard laid out by the speaker.

Finally, why should we see this speaker as an authority? I never of this person (obviously that is not the standard for judging whether a person is an authority on a subject) and thus I do not know what expertise he brings to this beyond being a professor of law during the early 19th century. But for that matter there are many people who have written on the law. Why is this person a greater authority than Publius, who I think many others have made clear would disapprove of this exercise of executive power? Thus why is this person a greater authority than they are?

Noah

Noah
1.18.2006 3:10am
Observer (mail):
1) The Complaint fails on its face to allege facts showing that the plaintiffs have standing. To have standing to object to the NSA surveillance program, the plaintiffs would have to allege that the NSA spied on them personally.

2) I don't know for sure - may be somebody else does - whether a court would authorize a fishing expedition by a potential plaintiff to discover whether the Government has done some harm to the plaintiff that would justify a suit. It seems pretty far fetched to me, so my conclusion is that this case will dismissed for lack of standing.
1.18.2006 9:26am
neutral:
Problem with this lawsuit is, what plaintiffs say would apply just as well to a perfectly legal wiretapping with a FISA court issued warrant. Imagine tomorrow Bush turns around and goes to FISA court for warrants each and every time. NSA continues to listen on suspected terrorist communications. What has changed from plaintiffs perspective? Would the probability that their conversations with the same parties are listened on decrease? Not really. It seams to satisfy the plaintiffs we would need to abolish NSA altogether.
1.18.2006 9:28am
The Ace (mail):
If these are the best attorney's at the ACLU, wow are they in big trouble as an organization. What a silly, and absurd filing.
Oh well, it's not going anywhere.

Food for though:
Smith v. Maryland (1979)


W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud, and preventing violations of law.” … Electronic equipment is used not only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a telephone which is subject to a special rate structure.” … Pen registers are regularly employed “to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling.” … Although most people may be oblivious to a pen register’s esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls…. Most phone books tell subscribers, on a page entitled “Consumer Information,” that the company “can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.” … Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.
1.18.2006 9:51am
Robert Schwartz (mail):
First, I hope this puts paid to any contention that the ACLU is in fact anything other than an instrumentality of the Democrat party.

Second, I hope that the administration tells the courts that it is not playing this game, and that there will be no legal actions, no discovery and no motion practice. The court have no jurisdiction and should butt out.
1.18.2006 10:10am
Tom Holsinger (mail):
Has the ACLU inadvertently admitted it is a terrorist-supporting organization?
1.18.2006 11:17am
Kandor42:
Any thoughts on why the ACLU chose to file in Detroit?
1.18.2006 11:29am
Mary Katherine Day-Petrano (mail):
Maybe ED Mich is hospitable? Forum shopping.
1.18.2006 11:44am
velvel (mail):
It is my understanding that Al Gore was introduced to the crowd by former GOP Congressman (and former United States Attorney for the Northern District of Georgia) Bob Barr...

Why was the introduction and (more importantly the introducer) left out of all the MSM reports and the wingers on both sides?

Barr was absolutely to the right of the mainstream and possesses insight through his days as a prosecutor and member of congress. I am more willing to believe his analysis of the intercepts than I am Scott McClelland or Alberto Gonzales.
1.18.2006 1:06pm
KMAJ (mail):
velvel,

While I can understand your believing Bob Barr's analysis over Scott McClellan, from a strictly legal experience standpoint, but you reveal a partisan point of view in your opinion when you inlcude Gonzalez. Alberto Gonzalez's jurisprudence experience as Texas Supreme Court justice, adjunct professor at the University of Houston Law Center and a long career in private practice, exceeds Barr's bona fides in the legal field. You have to also look at Barr's history as a 'privacy rights' hardliner, which does not diminish his conservative credentials, but does expose an axe to grind or bias on the issue.

This is not to say that 'privacy' is a left / right issue, there are those who champion privacy rights on both sides, but for vastly different reasons. The real issue is those playing political football with the very serious task of trying to find the right balance between security and civil rights in this age of the War on Terror. Idealists, of which I classify Barr on the privacy issue, see only black and white, which is a hindrance to finding the right balance.
1.18.2006 1:31pm
Just an Observer:
KMAJ,

I don't think anyone argues that Alberto Gonzales is not competent as a lawyer. Rather, his position as the President's chief advocate makes it impossible to think his legal opinion is an unbiased determination of what is legal.

That is why we have courts, not just attorneys general, to decide what the law is.
1.18.2006 2:38pm
Michael B (mail):
Unbiased? We have judges, working within various courts, to interpret the law, not to provide a lack of bias.
1.18.2006 3:13pm
Neal Lang (mail):
This, of course, gives the impression that this speaker thinks the executive, when necessary, should go around the law.

Actually, St. George Tucker, is saying that the Commander-in-Chief (and not the Congress or the Courts) will be balmed for any failures in "National Security" that take place on his watch. I believe the aftermath of 9/11 makes this point, as well. So, Tucker's point is that if you hold the President responsible for "National Security" failures, you must allow him coresponding "authority" to manage the Nation's Security. This is good management philosophy, and the reason that the Framers take the President's National Security and Wartime "Powers" so seriously. The best example is the ability to suspend the "Privilege of the Writ of Habeas Corpus" "when in Cases of Rebellion or Invasion the public Safety may require it" (Article I, Section 9.) Without Habeas Corpus, the courts are virtually powerless, as Chief Justice Taney found out in the early days of the Civil War.

Tucker likened the Commander-in-Chief authority of the President to that of Monarch in Great Britain. That is pretty "powerful".
1.18.2006 3:57pm
davidgmills (mail):
Can the government waive standing if the allegation is that the government searched us but refuses to tell us? It seems like when the government holds all the proof about whether it illegally searched the individuals in question, and then when demand is made to prove that these individuals were not serached and the government refuses to confirm or deny that they have been searched, the government de facto waives standing.

Any thoughts on waiver?
1.18.2006 5:10pm
davidgmills (mail):
One other way of looking at the waiver issue. If the exeuctive can always say to the private citizen plaintiff that it is not going to confirm or deny the plintiff's claims in order to defeat standing, how then can the jucicial branch ever be a check on the executive?
1.18.2006 5:26pm
Just an Observer:
Neal Lang: "This is good management philosophy, and the reason that the Framers take the President's National Security and Wartime 'Powers' so seriously. The best example is the ability to suspend the 'Privilege of the Writ of Habeas Corpus' 'when in Cases of Rebellion or Invasion the public Safety may require it' (Article I, Section 9.) ..."

Article I describes the powers of Congress, not the President. The executive powers are described in Article II.

The Suspension Clause is generally read as applying to Congress. See Scalia's dissent in Hamdi for some educational background:


Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151—152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208—209.
1.18.2006 5:35pm
Mary Katherine Day-Petrano (mail):
"Unbiased? We have judges, working within various courts, to interpret the law, not to provide a lack of bias."

In this context of the President's NSA spying potentially compromising the impartiality of judges to manipulate the utcome of cases, did anyone see the Jan. 12, 2006 LA Times article by Laura K. Donohue, You're Being Watched: Efforts to Collect Data on Americans Go Far Beyond the NSA's Domestic Spying Program? Quoted below:

"The FBI has used Patriot Act powers to break into a judge's chambers and to procure records from medical clinics."

It is one thing if judges have particular philosophies; quite another if the Administration is conducting Watergate-style break-ins to manipulate the outcome of judicial independence and the cases properly before our courts. Also a violation of Separation of Powers, one might think.
1.18.2006 5:36pm
davidgmills (mail):
Neal Lang: The laws of warfare belong to Congress, not to the executive, despite waht the proponents of the of the doctrine of the unitary executive might think. You might read my article on Article I, Clause 8, Section 10 and the law of nations clause.

http://www.dissidentvoice.org/Jan06/Mills15.htm


In my article, I argue for bringing back the law of nations clause into our constitutional jurisprudence because I believe it addresses how military actions against non-sovereigns are to be conducted.
1.18.2006 6:12pm
Kovarsky (mail):
What is the current status of information exchanged between the NSA and the FBI that is subsequently used in trials? I guess my question subdivides into 3 parts:

(1) The NSA does not have to identify the source of the information it provides to hte FBI, correct? Or more narrowly, it does not have to clarify whether that information was at least in part a product of one of these illegal taps (or a FISA tap, for that matter)?

(2) If that is the case, what are the 4th Amendment implications for that information used in a proceeding where a defendant enjoys 4th Amendment protection? Does that mean all of this NSA evidence is excluded, because the FBI and DOJ could not possibly know whether it was obtained illegally, or does it arrive with some special presumption of legality that would require the defendant to specifically prove it's illegal origins?

(3) If the information does flow from the NSA to the FBI without "sourcing" involving the tap, is there a way for a criminal defendant to go back and "source" it through the NSA retroactively?
1.18.2006 7:11pm
Michael B (mail):
Mary Katherine Day-Petrano,

The Laura Donohue (reg req) article in the L.A. Times. Some reminders, yet again: 1) rhetoric and assumptions vs. known quantities and facts; 2) abstractions, legal and otherwise vs. existential weightings (e.g., those pertinent to evolving communications and weapons technologies); 3) ad hominem inferences and insinuations vs. balanced and more substantial analyses.

Also, you don't want a debate on the basis of the subject which was introduced and which you quoted - that is to say judges/courts interpreting the law vs. providing a lack of bias. Two different things.
1.18.2006 8:34pm
Mary Katherine Day-Petrano (mail):
Michael B., I could give you "known qualities and fact," but I am not allowed to post it on this Board. Too sensitive I guess.

In the context of this NSA spying, maybe I am a bit fatalistic, but I truly fear for the day the drivers licenses under the REAL ID Act of 2005 that will be using RFID chips transfer those RFIDs to sub-dermal implants in every person on US soil, including our judges. After all, depending in whether they are low frequency or high frequency, wrapping your REAL ID in aluminum foil or degauzing it with a strong magnet will disrupt the RDIF. However, not so easy once it becomes law to have it implanted under everyone's skin.

Maybe people think the "known qualities and facts" about my cases I am not allowed to talk about, especially the one about the driver's license, are science fiction, but I would invite anyone truly interested in where this NSA spying is leading to conduct an internet search on the RFID technology and some of the patents being granted.

What happens to our Democracy when the the RFID chips are both passive and active, and any person, including a judicial officer the NSA/President do not happen to like, find their RFID chip implant remote-controlled to heat up or detonate if the judge does not decide the case to the President's liking. A big violation of Separation of Powers, yes, but what is the poor implanted judicial officer goiing to do about it once the implant has occurred? RFID implants + NSA electronic tracking = control of every movement at every moment of every American.

My father did this type of work, I know from the inside an Orwell world is not far behind. The difference, if one remembers the glorification of it in the Jetsons, is that the Jetsons had free will; most Americans will not once this RFID human-implant system coupled with the GIANT data base that the government is building leaves port.
1.18.2006 9:42pm
Just an Observer:
Michael B: "Also, you don't want a debate on the basis of the subject which was introduced and which you quoted - that is to say judges/courts interpreting the law vs. providing a lack of bias. Two different things"

I honestly am not seeking a debate either; I don't even know if we disagree. I would ask you matter-of-factly to explain that point more fully.
1.19.2006 12:43am
Neal Lang (mail):
Neal Lang: The laws of warfare belong to Congress, not to the executive, despite waht the proponents of the of the doctrine of the unitary executive might think. You might read my article on Article I, Clause 8, Section 10 and the law of nations clause.

Really?

First, there is no "Article I, Clause 8, Section 10" in my copy of the Constitution of the United States of America.
Article I [Section 10.] No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

All the clauses of Section 10 of Article I are specific prohibitions on the "powers and authority" of the several States and not the Executive. Else, the first clause, which is specifically related to "treaty making" authority, which according to Article II Section 2 is the sole perogative of the President (the Senate's sole perogative with regards to treaties is ratifying treaties made by the Executive), to wit:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;


Second, if in fact the Congress is the source of the "laws of warfare", I suggest it might be instructive to see just how the Congress has elected to exercise such "authority". Please see Title 10 of the Federal Code entitled (ARMED FORCES) that includes at Subtitle A—General Military Law under PART I—ORGANIZATION AND GENERAL MILITARY POWERS in CHAPTER 3—GENERAL POWERS AND FUNCTIONS at § 121 which is captioned - "Regulations" where we find the following:
TITLE 10 Subtitle A PART I CHAPTER 3
§121. Regulations

The President may prescribe regulations to carry out his functions, powers, and duties under this title. From: U.S. Code collection

Of course, "his functions, powers, and duties" are those of "Commander-in-Chief", as stated in Article II, to wit:
Article II [Section 2.] The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

Typically, the President acts as "Commander in Chief" at time of peril to the "Public Safety" such as during a war, to wit:
Article I [Section 8.] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

As for the "law of nations", to the degreee that such might refer to formal international understanings (a.k.a. Treaties or "Conventional law of nations"), I would suggest that the Constitution reserves that area of "law making" speicifically to the President under his aforementioned Article II Section 2. "treaty making" authority.

However, the understanding of the Framers as to the "law of nations" was related to and derived the understanding of the Roman "Stoics" as being derived from the "laws of nature, and nature's God":
The Law of Nations, as far as the Roman was concerned, was the uniform rule of law that God intended the human world to live under and the reason why Rome had been allowed, without ever intending to do so, to conquer the world. From: the Law of Nations

To the Framers, the source of the "Law of Nations" was God - the same source as the "Rights of Man", and therefore "immutable" ("Not subject or susceptible to change."). This concept was expressed in the Founders' Declaration of Independence from Britain and the British king:
When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

The thoughts expressed in the Declaration of Independence were an appeal to the Nations of World by the representatives of "the People" of the 13 colonies for the independent colonies to take their "rightful place" among these nations.
§ 3. Definition of the law of nations.

The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights. (1)

IDEA AND GENERAL PRINCIPLES

In this treatise it will appear, in what manner States, as such, ought to regulate all their actions. We shall examine the obligations of a people as well towards themselves as towards other nations; and by that means we shall discover the Rights which result from these obligations. For, the right being nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty — it is evident that right is derived from duty, or passive obligation, — the obligation we lie under to act in such or such manner. It is therefore necessary that a Nation should acquire a knowledge of the obligations incumbent on her, in order that she may not only avoid all violation of her duty, but also be able distinctly to ascertain her rights, or what she may lawfully require from other nations.

§ 4. In what light nations or states are to be considered.

Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature, — Nations, or sovereign states, are to be considered as so many free persons living together in the state of nature.

It is a settled point with writers on the natural law, that all men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a State, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign. But the body of the nation, the State, remains absolutely free and independent with respect to all other men, and all other Nations, as long as it has not voluntarily submitted to them.

§ 5. To what laws nations are subject.

As men are subject to the laws of nature, — and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, — the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, as we have just observed (§3), the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties

§ 6. In what the law of nations originally consists.

We must therefore apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights: consequently, the law of Nations is originally no other than the law of Nature applied to Nations. But as the application of a rule cannot be just and reasonable unless it be made in a manner suitable to the subject, we are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only of the subjects to which it is applied, so as to allow of our substituting nations for individuals. A state or civil society is a subject very different from an individual of the human race; from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights: since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different; and a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of a quite different nature. There are many cases, therefore, in which the law of Nature does not decide between state and state in the same manner as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of thus applying it with a precision founded on right reason, that renders the law of Nations a distinct science. (2)

§ 7. Definition of the necessary law of nations.

We call that the Necessary Law of Nations which consists in the application of the law of nature to Nations. It is Necessary because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individuals, since states are composed of men, their resolutions are taken by men, and the law of nature is binding on all men, under whatever relation they act. This is the law which Grotius, and those who follow him, call the Internal law of Nations, on account of its being obligatory on nations in point of conscience. (3) Several writers term it the Natural law of Nations.

§ 8. It is immutable
Since therefore the necessary law of nations consists in the application of the law of nature to states, — which law is immutable, as being founded on the nature of things, and particularly on the nature of man, — it follows that the Necessary law of nations is immutable.

§ 9. Nations can make no change in it, nor dispense with the obligations arising from it.
Whence, as this law is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.

This is the principle by which we may distinguish lawful conventions or treaties from those that are not lawful, and innocent and rational customs from those that are unjust or censurable.

There are things, just in themselves, and allowed by the necessary law of nations, on which states may mutually agree with each other, and which they may consecrate and enforce by their manners and customs. There are others of an indifferent nature, respecting which, it rests at the option of nations to make in their treaties whatever agreements they please, or to introduce whatever custom or practice they think proper. But every treaty, every custom, which contravenes the injunctions or prohibitions of the Necessary law of nations is unlawful. It will appear, however, in the sequel that it is only by the Internal law, by the law of Conscience, such conventions or treaties are always condemned as unlawful, and that, for reasons which shall be given in their proper place, they are nevertheless often valid by the external law. Nations being free and independent, though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that nation would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating her actions; an assumption on their part, that would be contrary to the law of nature, which declares every nation free and independent of all the others.

Notes:
(1) The Law of Nations modifies the intercourse of independent commonwealths in peace, and prescribes limits to their hostilities in war. It prescribes, that in peace nations should do each other as much good, and in time of war as little harm, as may be possible, without injuring their own proper real interests. The laws of nations, in short, establish that principle and rule of conduct which should prevent the strongest nation from abusing its power, and induce it to act justly and generously towards other states, upon the broad principle that true happiness, whether of a single individual or of several, can only result from each adopting conduct influenced by a sincere desire to increase the general welfare of all mankind. (Post, § 13, 14; Mackintosh, Dis. 3, 4; Montesq. de l'Esprit des Lois, liv. 1, c. 3; and see 1 Bla. Com. 34 to 44; 4 Bla. Com. 66, 67.) In cases of doubt arising upon what is the Law of Nations, it is now an admitted rule among all European nations, that our common religion, Christianity, pointing out the principles of natural justice, should be equally appealed to and observed by all as an unfailing rule of construction, (2 Ward's Law of Nations, pp. 11, 339, 340.) The difficulty is, that there is no general moral international code framed by the consent of the European powers, so desirable to be fixed, especially at this period, when harmony happily appears to subsist, and most of the nations of Europe have, by recent experience, become practically convinced of the advantages that would result from the establishment of fixed general rules, so as to reconcile the frequent discordancy of the decisions of their various prize tribunals and upon other contests. The statesmen of the higher powers of Europe would immortalize themselves by introducing such a code, and no period of history for the purpose has been so favourable and opportune. (See Atcheson's Report of the case of Havelock v. Rockwood, Preface i.)

The law of nations is adopted in Great Britain in its full and most liberal extent by the common law, and is held to be part of the law of the land; and all statutes relating to foreign affairs should be framed with reference to that rule. (4 Bla. Com. 67.) But still there is no general code; and to the regret that none has been introduced, may be also added, the want of an international court or tribunal, to decide upon and enforce the law of nations when disputed; and consequently, although when states are temperately inclined to ascertain and be governed by the law of nations, there will be little doubt upon the decision, or of the adoption of measures the most just; yet, if a state will not listen to the immutable principles of reason, upon the basis of which the imperfect law of nations is founded, then the only remedy is to appeal to arms; and hence frequently the just cause of war, which, if there were a fixed code, with a proper tribunal to construe it, would in general be prevented.

The sources from whence is to be gathered information — what is the positive Law of Nations generally and permanently binding upon all independent states? are acknowledged to be of three descriptions : First, the long and ordinary PRACTICE of nations, which affords evidence of a general custom, tacitly agreed to be observed until expressly abrogated. Secondly, the RECITALS of what is acknowledged to have been the law or practice of nations, and which recitals will frequently be found in modern treaties. Thirdly, the WRITINGS of eminent authors, who have long, as it were by a concurrence of testimony and opinion, declared what is the existing international jurisprudence.

Thus Lord Mansfield in Triquet v Bath, (3 Burr. Rep. 1481,) stated as the declaration of Lord Talbot, that the law of nations is to be collected from the practice of different nations, (and see per Sir William Scott, in The Fladoyen, 1 Rob. Rep. 115, post, lxiii. n. (7),) and the authority of writers, such as Grotius, Barbeyrac, Bynkershoek, Wicquefort, &c., there being no English writer of eminence upon the subject, and English elementary writers of high authority have also acknowledged that such foreign authors are authorities to ascertain the law of nations. (Comyn's Digest, tit. "Ambassador," B.; Viner's Ab. "Merchant," A. 1; and 3 Bla. Com. 273) To these are to be added Puffendorf, Wolf, Selden, Valen, Clerac, Pothier, Burlamaqui, Emerigon, Roccus, Casegis, Loecenius, Santerna, Maline, Molloy, and above all, the present work of Vattel; to which may be added some modern works of great ability, but not yet acknowledged to be such high general authority as the former, viz. Ward's and Marten's Law of Nations, and the recent valuable French publication, Cours de Droit Public Interne et Externe, par le Commandeur Silvestre Pinheiro Ferreira, Ministre D'Etat au Paris, 1830, which embraces the French modern view of the law of nations upon most of the subjects discussed in Vattel and some others.

It was from the more ancient of these several authors, and other similar resources, that Lord Mansfield framed the celebrated letter of the Duke of Newcastle to the King of Prussia's Secretary, which is considered a standard of authority, upon the laws of nations, as far as respects the then disputed right to search for and seize enemies' property on board neutral ships in certain cases in time of war. (See Holliday's Life of Lord Mansfield, vol. 2, p. 424, &c., and Collectanea Juridica 1 vol. 129; see also Fifeash v. Becker, 3 Maule &Selwyn, 284, in which Lord Ellenborough quotes several of the above authors, to ascertain the law of nations upon the privilege of consuls.)

Upon some parts of the law of nations, especially that relating to maritime affairs, there are ancient codes, which either originated in authority, or were afterwards acknowledged to have become such; but still those codes in the present state of commercial intercourse are imperfect. Of those are the Rhodian Laws, being one of the earliest systems of marine law, but which was superseded by the collection entitled Consolato del Mare, Grotius, Book 3, ch. 1, s. 5, n. 6. Next in order are the Laws of Oleron, promulgated about the thirteenth century. Another system of international law was framed by the deputies of the Hanseatic League in 1597, and which was confirmed with additions in 1614, and has obtained much consideration in the maritime jurisprudence of nations. (See remarks on that code, 2 Ward's Law of Nations. 276 to 290). But the most complete and comprehensive system of the marine law of nations is the celebrated Ordinance of Marine of Louis XIV., published in 1681, and which coupled with the commentary of Valin, Lord Mansfield always treated as of the highest authority. (See 1 Marshall on Insurance, Prelim. Dis. 18.)

In modern times, in order to prevent any dispute upon the existence or application of the general law of nations, either pending peace, or at or after the subsequently breaking out of war between two or more independent states, it has become the practice to enter into express treaties, carefully providing for every contingency, and especially modifying and softening the injurious consequences of sudden war upon the commercial and other intercourse between the two states, and sometimes even wholly changing the character of war or of alienage, and even enabling a foreign alien enemy during war to retain his interest in land in the opponent country. (See an illustrating instance in Sutton v. Sutton. 1 Russ. &My. Rep. 663.) (Society, &c. v. New Haven, 8 Wheat. R. 464.) In these cases, the treaty between the two contracting states either alters, or expressly declares the law of nations, and binds each. But still questions upon the general law of nations will frequently arise, and it will then become necessary to recur to the other evidence of what is the law of nations, viz. the previous ordinary and general or particular practice, or the opinion of the authors before alluded to.

In the latter part of the last, and in the present century, a great accession of learning, information, and authority upon the law of nations has been afforded by the valuable decisions of Sir W. Scott, (afterwards Lord Stowell,) and Sir J. Nicholl in the Court of Admiralty and Prize Court, and by several decisions in our Courts of Law and Equity. The known learning and scrupulous justice evinced in those decisions, have commanded the respect, the admiration and adoption, of all the European states, and of that modern, enlightened, and energetic nation, America. To these may be added, Chalmer's Collection of Opinions, which contain great learning upon many subjects of the public affairs of nations. These have been fully published since Vattel wrote; and the editor has attempted to improve this edition, by occasionally referring in the notes to the reports and work alluded to. The editor has also, in his Treatise on Commercial Law, and in a Summary of the Law of Nations, endeavoured to lake a more extended view of some of those branches of the law of nations, principally as it affects foreign commerce, and of the decisions and works subsequent to the publication of Vattel.

If the perfect general rights or law of nations be violated, then it appears to be conceded, that such violation may be the actual and avowed ground of a just war; and it is even laid down that it is the duly of every nation to chastise the nation guilty of the aggression. (Vattel, post, Book I. chap. xxiii. § 24, p. 144; § 65, 66, 67, p. 160, 161)

Unhappily, especially in modern times, we have found that the law of nations has sometimes been set at naught by over-powerful states, adhering (to use the words of an English monarch) rather to Common Law than stopping to inquire whether the law of nature and of justice had not become, and been declared in that instance, part of the law of nations. It may therefore be asked, of what utility is the law of nations, since it is of such imperfect and inefficient obligation? The answer is, that all nations, although for a time astounded and surprised by the unexpected aggression of an oppressive and ambitious conqueror, will yet ultimately feel, and endeavour to give effect to, the true law of nations, lest, by suffering its continued violations, they may individually be sacrificed; and consequently, as in the instance alluded to, they will ultimately coalesce and associate in one common cause, to humiliate and overcome the proud invader of all just rights and principles. It is therefore of the highest importance to collect all the principles and rules, which, in cases of doubt, must ever be consulted, at least by statesmen, in endeavouring to settle differences between differing states; and no authority stands higher in this respect than Vattel.

There is no permanent and general international court, and it will be found that in general the sovereign, or government of each state, who has the power of declaring war and peace, has also, as an incident, sole power of deciding upon questions of booty, capture, prize, and hostile seizure, though sometimes that power is delegated, as in Great Britain, as respects maritime seizures, by commission to the judge of the Admiralty Court, with an appeal from his decisions to the Privy Council. In these cases no other municipal court has cognizance in case of any hostile seizure. Elphinstone v. Bedreechund, Knapp's Rep. 316 to 361; and Hill v. Reardon, 2 Russ. Rep. 608, and further, post. p. 392. So there is no general international court in which a treaty can be directly enforced, although, collaterally, its meaning may be discussed in a municipal court; therefore, no bill to enforce a treaty can be sustained in equity. Nobob of Carnatic v. East India Company, 2 Ves. jun. 56; and Hill v. Reardon, 1 Sim. &Stu. 437; 2 Russ. Rep. 608.

Sometimes, however, especially in modern limes, treaties, confirmed by temporary statutes in each country, appoint a temporary international court, with limited powers, to decide upon certain claims, and to be satisfied out of an appointed public fund. Thus, in the treaty of peace between Great Britain and France, and by the 59 G. 3, c. 31, certain commissioners were appointed to carry into effect the conventions for liquidating the claims of British subjects on the French government, with an appeal to the Privy Council. In these cases, the appointed jurisdiction is exclusive, and no other municipal court has any power as regards the adjustment of the claims between the two subjects of each country; — though, as between private individuals, if any claimant stand in the situation of an agent or trustee, then, in a court of equity, he may be compelled to act as a trustee of the sum awarded to him. Hill v. Reardon, Jac. Rep. 84; 2 Russ Rep. 608 to 633. overruling the Vice-Chancellor's decision in 2 Sinc. &Stu. 437. — C, {Comegys v. Vasce, 1 Peters S.C. Rep. 193, decided upon the Treaty with Spain, which ceded Florida to the United States, dated May 2d, 1819. See also Lestapies v. Ingraham, 5 Barr, 71, and the cases cited.}

(2) M. de Vattel then proceeds to state the different heads of international law, which has been variously subdivided by other writers. The clearest division is under two principal heads — First, the natural law of nations; and secondly, the positive. The former is that of God and our conscience, and consequently immutable, and ought to be the basis of the positive laws of nations, The positive is threefold; First the universal voluntary law or uniform practice of nations in general; secondly, the customary law; and thirdly, the conventional law or treaties. (See 1 Chitty's Commercial Law, 25 to 47.) — C.

The following note of a former editor is deservedly retained.

The study of the science of the law of nations presupposes an acquaintance with the ordinary law of nature, of which human individuals are the objects. Nevertheless, for the sake of those who have not systematically studied that law, it will not be amiss to give in this place a general idea of it. The natural law is the science of the laws of nature, of those laws which nature imposes on mankind or to which they are subject, by the very circumstances of their being men; a science, whose first principle is this axiom of incontestable truth — "The great end of every being endowed with intellect and sentiment, is happiness." It is by the desire alone of that happiness, that we can bind a creature possessed of the faculty of thought, and form the ties of that obligation which shall make him submit to any rule. Now, by studying the nature of things, and that of man in particular, we may thence deduce the rules which man must follow in order to attain his great end, — to obtain the most perfect happiness of which he is susceptible. We call those rules the natural laws, or the laws of nature. They are certain, they are sacred, and obligatory on every man possessed of reason, independently of every other consideration than that of his nature, and even though we should suppose him totally ignorant of the existence of a God. But the sublime consideration of an eternal, necessary, infinite Being, that author of the universe, adds the most lively energy to the law of nature, and carries it to the highest degree of perfection. That necessary Being necessarily unites in himself all perfection: he is, therefore, superlatively good, and displays his goodness by forming creatures susceptible of happiness. It is then his wish that his creatures should be as happy as is consistent with their nature: consequently, it is his will that they should, in their whole conduct, follow the rules which that same nature lays down for them, as the most certain road to happiness. Thus the will of the Creator perfectly coincides with the simple indications of nature; and those two sources producing the same law, unite in forming the same obligation. The whole reverts to the first great end of man, which is happiness. It was to conduct him to that great end that the laws of nature were ordained: it is from the desire of happiness that his obligation to observe those laws arises. There is, therefore, no man — whatever may be his ideas respecting the origin of the universe — even if he had the misfortune to be an atheist — who is not bound to obey the laws of nature. They are necessary to the general happiness of mankind; and whoever should reject them, whoever should openly despise them would by such conduct alone declare himself an enemy to the human race, and deserve to be treated as such. Now, one of the first truths which the study of man reveals to us, and which is a necessary consequence of his nature, is, that in a state of lonely separation from the rest of his species, he cannot attain his great end — happiness: and the reason is, that he was intended to live in society with his fellow-creatures. Nature, herself, therefore, has established that society, whose great end is the common advantage of all its members; and the means of attaining that end constitute the rules that each individual is bound to observe in his whole conduct. Such are the natural laws of human society. Having thus given a general idea of them, which is sufficient for any intelligent reader, and is developed at large in several valuable works, let us return to the particular object of this treatise. — Note ed. A.D. 1797.

(3) See this position illustrated, Mackintosh, Dis. 7; 1 Chitty's Commercial Law 28 and n. (4)post lx — C.

From: THE LAW OF NATIONS - PRELIMINARIES. - IDEA AND GENERAL PRINCIPLES OF THE LAW OF NATIONS.

As for the Constitution's Article I Section 8 reference to the "law of nations", to wit:
Article I [Section 8.] To define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations;

It did not take a "Declaration of War" to "punish" Paracy, which was considered a crime (in order words a "Felony"). This explained by St. George Tucker in his contemporary analysis of the Constitution, to wit:
The definition of piracies, says the author of the Federalist, might perhaps, without inconvenience, be left to the law of nations: though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite, being a term of loose signification, even in the common law of England. The true ground of granting these powers to congress seems to be, the immediate and near connection and relation which they have to the regulation of commerce with foreign nations, which must necessarily be transacted by the communication on the high seas; and the right of deciding upon questions of war and peace, where the law of nations, is the only guide. Under this head, of offences against the law of nations, the violation of the rights of ambassadors, as also of passports, and safe conducts is included. The act of 1 cong. 2 sess. c. 9, embraces the whole.

And here we may remark by the way, the very guarded manner in which congress are vested with authority to legislate upon the subject of crimes, and misdemeanors. They are not entrusted with a general power over these subjects, but a few offences are selected from the great mass of crimes with which society may be infested, upon which, only, congress are authorised to prescribe the punishment, or define the offence. All felonies and offences committed upon land, in all cases not expressly enumerated, being reserved to the states respectively. From whence this corollary seems to follow. That all crimes cognizable by the federal courts (except such as are committed in places, the exclusive jurisdiction of which has been ceded to the federal government) must be previously defined, (except treason,) and the punishment thereof previously declared, by the federal legislature 206.
Notes:
206. See the opinion delivered by Judge Chase, in the federal circuit court of Pennsylvania, in the case of the United States vs. Worrel, 2 Dallas's Reports, 384. From: Tucker's Blackstone

No one disputes the Congress' "authority" to declare war (although some of this has been relinquished by Congress to the President in Title 50's "War Powers Act"). However, once war has been declared, the Framers realized (because of the disaster they witnessed during the Revolution, where the Continental Congress made all the "rules of warfare", and ran the Continental Army by committee - nearly causing a loss to the British) it must be run by a "unitary executive", who the Constitution defines as the President, when he assumes his role during times of peril to the National Security and the "Public Safety" as Commander-in-Chief.

I am sorry if cannot see the "plain meaning" expressed in the Constitution, however, the President authority set "laws of warfare" was recognized by the Framers in the language of the Constitution and by the Congress, in the "plain language" of Title 10.

It seems that the biggest problem with attorneys intrepreting our Constitution is they don't want to accept its "plain English meanings" and instead insist on "discovering" alternate "understandings" base on meanings buried in "penumbra" (An area in which something exists to a lesser or uncertain degree: “The First Amendment has a penumbra where privacy is protected from governmental intrusion” - Joseph A. Califano, Jr.).
1.19.2006 12:16pm
Neal Lang (mail):
Article I describes the powers of Congress, not the President. The executive powers are described in Article II.

Actually, Section 9 of Article I describes not "the powers of Congress", but its "limitation". For example, James Madison, the initial drafter of the Bill of Rights suggested placing them in the body of the Constitution at Article I Section 9, between Clauses 3 and 4 because they were to a "limit" on the "powers" of Congress. Unfortunately, lawyers have found that these "limits" on Congress' "power" are really "extentions of the their power to regulate", as in the case of 2nd Amendment being part of Congress' "delegated authority" to regulate "the People's right to keep and bear arms". Go figure!

Of course, while Article I Section 9 Clause 2, to wit:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

limits the Congress' "authority" to generally "suspend" the "Privilege of the Writ of Habeas Corpus", it is silent on who, "in Cases of Rebellion or Invasion the public Safety may require it", may suspend it. As Supreme Court Chief Justice Roger B. Taney found out during the Civil War, President Abraham Lincoln assumed the "authority" to "suspend" the "Writ of Habeas Corpus" as it might apply to certain Maryland "Copperheads", as obviously it was the during "a Case of Rebellion", he believed he had "Power" as "Commander-in-Chief" to do so because "the public Safety required it". Not much different than President George W. Bush's actions with regard to gathering necessary "military intelligence" via "warrantless electronic surveillance" of suspected "enemy agents" in the US through the NSA Surveillance Program in question, IMMHO.
1.19.2006 12:39pm
Just an Observer:
Neal Lang,

Notwithstanding your most recent cut-and-paste babble, I'll stick with Justice Scalia's interpretation of the Constitution over your own learned work. Not only is he one of the most authoritative "originalist" jurists practicing today, in this case he is simply stating the settled, consensus view that the Suspension Clause applies to Congress and legislation is required to invoke it.

As for Lincoln's actions to suspend habeus corpus during the Civil War, I agree that occurred as a matter of historical fact. But that did not make it legally legitimate. Note Scalia's citation to Chief Justice Taney's ruling "rejecting Lincoln’s unauthorized suspension."

Lincoln's actions, and his refusal to abide with Taney's ruling, caused a constitutional crisis that eventually subsided when Congress itself acted to suspend habeus corpus. Today, we do not yet face a constitutional crisis. I hope and expect the three branches will resolve the current controversy without anyone deploying bayonets around 1 First Street NE, or even convening an impeachment proceeding.

Notably the Bush administration never has asserted the authority to invoke the Suspension Clause, even in arguing cases where habeus is more relevant. No one would take such an argument seriously, least of all the justices.

Even the President's more limited assertion of unilateral authority to detain as an enemy combatant a particular citizen captured on a foreign battlefield, Yaser Esam Hamdi, without judicial process failed to gain more than a single vote on the Supreme Court.
1.19.2006 1:26pm
Richard Aubrey (mail):
Debbie Schussel has a column on some of the plaintiffs. My guess is they could prove standing because the fed would have been absolutely nuts NOT to spy on them.
1.19.2006 1:55pm
Neal Lang (mail):
The Suspension Clause is generally read as applying to Congress. See Scalia's dissent in Hamdi for some educational background:

This "limitation" on the "power" of Congress' to legislate a "General Suspension" of "Privilege of the Writ of Habeas Corpus" is interesting for several reasons.

First, the "Writ of Habeas Corpus" is a "power" of the Judiciary (not the Executive nor the Legislative Branch), that "limits" the "authority" of the Executive Branch to "hold" someone in prison (say "non-uniformed combatants"). Prisons, military or otherwise general fall under the authority of the Executive Branch.

Second, the Article I Section 9 "limitation" on the "power" of Congress to legislate a "General Suspension" of "Privilege of the Writ of Habeas Corpus" also has a "limitation": "unless when in Cases of Rebellion or Invasion the public Safety may require it." Obviously, the Article I Section 9 such "exception" limits, not the "power" of "Legislative or Executive Branch", but, instead, the Judicial Branch. Arguably, the "power" of the Judiciary to issue "Writs of Habeas Corpus" is perhaps their most powerful "authority", as until someone is brought before the court, the Judiciary has no "authority" in the matter.

Third, during "Cases of Rebellion or Invasion the public Safety may require it", the "powers" of President, as "Commander-in-Chief" kick in. These "wartime powers" are very much akin to "martial law" ("Martial law is the system of rules that takes effect [usually after a formal declaration] when a military authority [Commander-in-Chief] takes control of the normal administration of justice."). This fact defines the "confict" of "powers" addressed in the 2nd Clause of Article I, Section 9, as being between the Judiciary's "power" to issue "Writ of Habeas Corpus" and the Executive's "authority" to hold on to someone it considers a "threat to public Safety".

It is not necessary to "devine" any "penumbra" secreted in the Constitution to reach this conclusion, as the "plain language" of the Articles in question lead directly to it.

Unlike my hero, Associate Justice Antonin Scalia, I believe that the "Privilege of the Writ of Habeas Corpus" clause of Article I Section 9 is a "limitation" on Congress' "power" to legislate a "general suspension" of the Judiciary's "power" to issue "Writs of Habeas Corpus" (which is a "limitation" on the "authority" of the Executive). However, to the extent that this clause has an "EXCEPTION", this exception, which is - "unless when in Cases of Rebellion or Invasion the public Safety may require it" - is truly a "limitation" on the "power" of the Judiciary, and, I believe, part of the Article II Section 2 "powers" of the President when acting on behalf of the National Security as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". Please note when the "Militia of the several States" is "called into the actual Service of the United States", to wit:
Article I [Section 8.]

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

The Constitution extends solely to the Executive the "power" - "to execute the Laws of the Union". Obviously, the "suppress(ion of) Insurrections and repel(ling of) Invasions" are exactly the same as "Cases of Rebellion or Invasion" when "the public Safety may require" a "limitation" on the Judiciary's "power" to issue "Writs of Habeas Corpus", and have them obeyed by the Executive Branch. It is at these times of maximum Executive "power" that the Judiciary ultimate "power" to issue "Writs of Habeas Corpus" may be "limited" by the Article I Section 9 exception.

To me, this says that Scalia is wrong and that President Abraham Lincoln was right in his "showdown" with Chief Justice Taney over this very "limitation" during the Civil War (arguably at time when our Nation and Constitution were in maximum danger).

While some people think that Congress' "powers" related to the Nation's "war making" ability, to wit:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
somehow extend "executive powers" in these areas to the Congress, these clauses actually relate only to the "justification" of (limitations on) Congress' "power" to tax, and should be read, as follows:
Article II [Section 8.] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States, ...; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The "power" to collect "taxes", arguably the greatest "power" delegated to Congress is "limited" in Article I Section 8 only as to how the "tax revenue" may be spent. This is made clear, I believe, in the "raise and support Armies" clause by it nexus to the 2 year limitation on appropriations for same, that is also found there.

Finally, consider this: Thomas Jefferson, arguably the greatest "civil libertarian" of the Father Founders opined:
“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (Letter to Abigail Adams, September 11, 1804)

Let's take Justice Scalia's dissent in Hamdi to highlight Jefferson's contention.
Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151—152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208—209.

Upon what does Supreme Court Associate Justices Scalia rely to support his assertion that the "power" to suspend the Judiciary's "power" to issue "Writs of Habeas Corpus"? Is it the "plain words" of the Constitution itself? No, in fact, he admits that "this provision does not state that suspension must be effected by, or authorized by, a legislative act".

What he relies is the opinion of members of the Judiciary Branch:

1st, Ex parte Bollman, 4 Cranch 75, 101 (1807), which involved William Cranch, chief judge of the District of Columbia circuit court, and the second reporter of decisions of the United States Supreme Court. After going bankrupt in land speculation, he was appointed to the DC Circuit bench by his uncle, President John Adams. Cranch, like William Marbury, was one of the "Midnight Judges" appointed under the Judiciary Act of 1801 that led to the Supreme Court case "Marbury v. Madison".

2nd, Ex parte Merryman, 17 F. Cas. 144, 151—152 (CD Md. 1861), this case involved a "Writs of Habeas Corpus" issued at a time of "Rebellion" and rejected by President Lincoln because it was a time when "the public Safety require(d) it". The Writ in question was issued by none than the Chief Justice of the Supreme Court himself, the Honorable Roger Brooke Taney, who decided that President's rejection of his Writ was an "unauthorized suspension" of HIS Judicial "power". Go figure!

3rd, 3 Story §1336, at 208—209, the opinion of Joseph Story, Supreme Court Associate Justice, and law school (Harvard) professor, to wit:
§ 1336. It is obvious, that cases of a peculiar emergency may arise, which may justify, nay even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes, because they were forgotten, 20 the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by congress since the establishment of the constitution. 21 It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body. 22

Notes:
20. 3 Black. Comm. 137, 138; 1 Tuck. Black. Comm. App. 291, 292.

21. Mr. Jefferson expressed a decided objection against the power to suspend the writ of habeas corpus in any case whatever, declaring himself in favour of "the eternal and unremitting force of the habeas corpus laws." 2 Jefferson's Corresp. 274, 291. — "Why," said he on another occasion, "suspend the writ of habeas corpus in insurrections and rebellions?" — "If the public safety requires, that the government should have a man imprisoned on less probable testimony in those, than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages." 2 Jefferson's Corresp. 344. — Yet the only attempt ever made in congress to suspend the writ of habeas corpus was during his administration on occasion of the supposed treasonable conspiracy of Col. Aaron Burr. Mr. Jefferson sent a message to congress on the subject of that conspiracy on 22d January, 1807. On the next day, Mr. Giles of the senate moved a committee to consider the expediency of suspending the writ of habeas corpus be appointed, and the motion prevailed. The committee (Mr. Giles, chairman) reported a bill for this purpose. The bill passed the senate, and was rejected in the house of representatives by a vote of 113 for the rejection, against 19 in its favour. See 3 Senate Journal, 22d January, 1807, p. 127; Id. 130, 131. 5 Journ. of House of Representatives, 26th January, 1807, p. 550, 551, 552.

22. Martin v. Mott, 12 Wheat. R. 19. See also 1 Tuck. Black. Comm. App. 292; 1 Kent's Comm. Lect. 12, (2d edit. p. 262 to 265.)

From: COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES; WITH
A PRELIMINARY REVIEW OF THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES, BEFORE THE ADOPTION OF THE CONSTITUTION. BY JOSEPH STORY, LL. D., DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY.

Compare "Burr's Rebellion" with the Civil War (over 500,000 killed) and the current War on Terror where "non-uniform combatants" flew Civilian Airliners in to buildings killing thousands of people.

Please note the source for all these "opinions", including Justice Scalia, were representatives of the very Branch of government whose "authority" is being "limited" by the exception in Article I Section 9 Clause 2 - the Federal Judiciary. One, Chief Justice Taney, really "had a dog in that fight", inasmuch as it was a "Writ of Habeas Corpus" issued by himself, that President Lincoln rejected in refusing to release someone who was organizing the insurrection in Maryland. Can you say "conflict of interest"? Exactly what does it take to get a member of the "despotic Branch" to recuse themself?

Anyway, it is obvious that Judicial Branch would prefer that any "limitations" on their "power" to come from slower acting "Legislative Branch", rather than the "Executive". Why? I think Justice Story's opinion pinpoints exactly why, to wit:
Yet the only attempt ever made in congress to suspend the writ of habeas corpus was during his administration on occasion of the supposed treasonable conspiracy of Col. Aaron Burr. Mr. Jefferson sent a message to congress on the subject of that conspiracy on 22d January, 1807. On the next day, Mr. Giles of the senate moved a committee to consider the expediency of suspending the writ of habeas corpus be appointed, and the motion prevailed. The committee (Mr. Giles, chairman) reported a bill for this purpose. The bill passed the senate, and was rejected in the house of representatives by a vote of 113 for the rejection, against 19 in its favour.

Giving the "power" to suspend the Judicial "power" to issue certain "Writs of Habeas Corpus" during times of emergency and extreme danger to the "public Safety may require it" would like not having said "limitation" at all. No, such a "limitation" would only make sense if the Branch of government directly responsible for the "public Safety" and whose "authority" is being challenged by the Judiciary's issuance of the "Writ of Habeas Corpus" would be vested with the Constitutional "power" to suspend it, but only when at times of extreme danger to the "public Safety may require it", and when the President is Constitutionally mandated to function as Commander-in-Chief.

Besides, to allow the Judiciary to be the sole arbiters as to any "limitations" on their Branch's "powers" makes that Branch exactly what Jefferson said they would be under such circumstance - the "despotic branch"!
1.19.2006 4:11pm
Neal Lang (mail):
Notwithstanding your most recent cut-and-paste babble, I'll stick with Justice Scalia's interpretation of the Constitution over your own learned work.

Why am I not surprise?
Not only is he one of the most authoritative "originalist" jurists practicing today, in this case he is simply stating the settled, consensus view that the Suspension Clause applies to Congress and legislation is required to invoke it.

Ah! An originalist that admits his position cannot be found in the clear text of the document in question. I am underwhelmed!

The "consensus" of who you speak is a consensus of the very Branch whose authority would be "limited" by the exception "when in Cases of Rebellion or Invasion the public Safety may require it". Now why would they be unbiased in their "consensus" as to how they would like said "limitation" to work?

I especially like Chief Justice Taney's unbiased "consensus"!
As for Lincoln's actions to suspend habeus corpus during the Civil War, I agree that occurred as a matter of historical fact. But that did not make it legally legitimate. Note Scalia's citation to Chief Justice Taney's ruling "rejecting Lincoln’s unauthorized suspension."

And an unbiased, unprejudiced ruling it was, too, seeing how it was Taney's own "Writ" that Lincoln rejection. Go figure!

Just when do Jurist recuse themself, anyway?
Lincoln's actions, and his refusal to abide with Taney's ruling, caused a constitutional crisis that eventually subsided when Congress itself acted to suspend habeus corpus. Today, we do not yet face a constitutional crisis. I hope and expect the three branches will resolve the current controversy without anyone deploying bayonets around 1 First Street NE, or even convening an impeachment proceeding.

Actually, it was the "Copperhead" Merryman whose actions in Maryland in raising an insurrection to attack the under-defended Washington, DC from the North that was the true "constitutional crisis". The "bayonets around 1 First Street NE" that would have been seen, would have been in the hands of a seccessionist Maryland Militia, under the command of Taney's pal, Merryland, as they took down the Republic and destroyed the Constitution. Thank God President Lincoln, upon his inauguration acted promptly to foil Mr. Merryman's treason. Apparently you have no conception on how truly "dicey" things where for the United States government in Washington, DC in April and May, 1861 - surrounded as it was by Slave States on all sides!
Notably the Bush administration never has asserted the authority to invoke the Suspension Clause, even in arguing cases where habeus is more relevant. No one would take such an argument seriously, least of all the justices.

No, they simply keep there "detainees" in Gitmo!

Gee, now I wonder why "the justices" wouldn't take it serious? Bias, perhaps?
Even the President's more limited assertion of unilateral authority to detain as an enemy combatant a particular citizen captured on a foreign battlefield, Yaser Esam Hamdi, without judicial process failed to gain more than a single vote on the Supreme Court.

So the Judicial Branch voted almost unanimously to uphold the "power" to issue "Writs of Habeas Corpus" - who would have thought? One dissent, hey! At least their is one unbiased jurist on the Supremes!
1.19.2006 4:43pm
Just an Observer:
Neal Lang,

While I have enjoyed this conversation, please understand that I no longer find it meaningful. If you think that you "win" because you get the last word, enjoy!

In discussions with me and others here, you -- not a lawyer, although that is not disqualifying -- have utterly dismissed the legitimacy of the federal judiciary, thrown out decisions including Katz v United States and Marbury v Madison because you as a True Believer are certain they were wrong, misinterpreted history as law, and ignored non-contested legal dicta written by the most eminent jurists. No matter what authority is presented to you by anyone else here, your next post dismisses it because your True Believer powers of reason enable you to Just Know Better than any of them, and you can cut-and-paste more irrelevant material to clutter up the thread.

I have no more time to spend on such silliness. Adieu.
1.19.2006 5:24pm
Michael B (mail):
Just an Observer, re, a lack of bias vs. interpreting the law.

Well, it minimally needs five to ten-thousand words, but will give it a truncated attempt. First, and to briefly continue in a purposely provocative mode, if a lack of bias were the object, in contrast to more simply ("more simply" only in relative terms) interpreting the law, then in equal measure to the manner in which we're critiquing and examining the President vis-a-vis the allegation of overreaching his executive authority with this NSA program, we'd also be critiquing and examining the former President for inadequately exercising his executive authority in the long wake of WTC '93 and other incidents (i.e., for negligence). Practically understood this is a moot issue (concerning the former President) and can be endlessly debated, so I intend it provocatively more in reference to the idea of a lack of bias than in partisan terms.

In less provocative and more general terms, Lady Justice represents a certain ideal while jurists interpreting the law, even at their very best, reflect a practical and imperfect working-toward that ideal. The ideal which Lady Justice represents is the ideal of proportionately weighing and interpreting the applicable laws - which in turn were enacted by relevant legislatures and enforced by relevant enforcement agencies and police powers. For good and for ill, humble humanity's involvement is, of course, inextricably a part of every link in that chain of consequential activities and events. All this is said not to quibble over any particulars, but to simply acknowledge fundamental conceptions and activities. Put in very simple terms and from a different angle, it's oxymoronic to state "you can't legislate morality" because the moral/ethical is the only thing which can be legislated, at least to any effect.

By contrast, the ideal of a lack of bias is a further ideal still, a platonic ideal, if it might be conceived as such, a more encompassing and higher ideal.

Much of this serves to emphasize the fact that the law subsists upon that moral/ethical substrate which society, past and present, provides. And again, not at all to quibble but to draw out and acknowledge some elemental and inextricable factors - a kind of fundamental ontology - relevant to this subject matter and which can only be described in phenomenological terms if basic comprehensions and a more complete apperception is to be achieved.

The law is necessarily framed in abstract terms: the word, the idea, the ideational, the ideological, etc. and thus reflects, as abstraction, a kind of stasis. But if "the law" is used in a too abstracted manner, too abstracted from the very moral/ethical substrate provided by individuals/society and upon which the law subsists, then, as an abstraction, 1) it risks being wielded as a kind of legalistic cudgel or bludgeon and 2) similarly risks, as abstraction, becoming unmoored from the very subject it is intended to address. A striking example of the latter can be found in this VC thread, where a commenter indicates he wouldn't want an executive to use any extra-legal means even to save N.Y., Chicago and L.A. from nuclear annihilation. An example of the former is the highly partisan/sectarian, presumptive and decontextualized rhetoric which informs the current NSA debate.

Suffice to say the ideal represented by Lady Justice is a more practical, a more mundane, ideal than the philosophical qua moral/ethical ideal of a "lack of bias" - and even the ideal which Lady Justice does represent is too often not achieved due to a variety of factors, both from within the courts per se as well as factors antecedent to the courts such as legislative, activist, ideological formations, educational, etc. - all of which help comprise the moral/ethical substrate alluded to.

I don't seek in any way to demote the ideal represented in Lady Justice, only to set it within relevant frameworks, including the broader or more encompassing ideal of a lack of bias. It's a contrast between a penultimate ideal and an ultimate ideal, again, the latter presupposing something like a qualitative omniscience, including a profound and knowing regard for the human subject, thus it's an ideal which has no need to affect being blind - even to the contrary. The two are both worthy, but neither should be confused with the other since consequences would result, to the detriment and confusion of both.
1.19.2006 5:48pm
Just an Observer:
Michael B,

Thank you for taking the time to post your seriously deep essay. I do not really have a reply, because I don't see how your ideas and mine are in conflict.

I do hope that if you find any of my posts exemplify "the highly partisan/sectarian, presumptive and decontextualized rhetoric which informs the current NSA debate," you will let me know directly.
1.19.2006 9:17pm
Neal Lang (mail):
While I have enjoyed this conversation, please understand that I no longer find it meaningful. If you think that you "win" because you get the last word, enjoy!

Ah! Are we cross?

In discussions with me and others here, you -- not a lawyer, although that is not disqualifying

Actually, I feel being a "non-lawyer" is actually to my advantage, as I can eliminate the bias your lawyerly feeling of superiority creates for many in your profession.
-- have utterly dismissed the legitimacy of the federal judiciary, thrown out decisions including Katz v United States and Marbury v Madison because you as a True Believer are certain they were wrong, misinterpreted history as law, and ignored non-contested legal dicta written by the most eminent jurists.

Well, I believe you overstate your case a tad. I do not "utterly dismissed the legitimacy of the federal judiciary" as I sincerely believe that taken as a whole, they can always serve as "bad examples". Actually, I merely dismiss the opinions of "eminent jurists" when they are "eminently biased" because these "eminent jurists" have a large "conflict of interest" when it comes to determining who has the last word on Constitutionality. Had the "eminent jurist", John Marshall, head of the Federal Judiciary, found that the elected Congress or the elected President, or even "the People" themselves, were the "final arbiters" of the real meaning of "the People's" Constitution, I would have agreed that YES!!! Chief Justice Marshall was indeed fair and unbiased in his opinion regarding the interpretation of the Constitution. Instead, Justice Marshall decided that HE, and his unelected, life-term colleagues were the top of the "real meaning of the Constitution" food-chain. Imagine that!

As for you being "historically challenged", well I suppose that your postings demonstrate that way better than I ever could.
No matter what authority is presented to you by anyone else here, your next post dismisses it because your True Believer powers of reason enable you to Just Know Better than any of them, and you can cut-and-paste more irrelevant material to clutter up the thread.

Gee, can't we all just get along? Look, when you present a "so called" authority, whose opinion is that HE and those like him, have the final say as to what the "real meaning" of the Constitution happens to be, pardon me if I look a tad askance at your authority and his self-serving opinion.

The same goes for the "opinionated" Chief Justice Roger Brooke Taney, and his "OPINION" that Commander-in-Chief Abraham Lincoln didn't have the "authority", at time of rebellion, when both the Constitutional Republic and the Public safety was at terrible risk, to reject HIS "Writ" to produce the body of the "Copperhead" insurrectionist, Merryman. If you cannot see the absurdity of this, you obviously have spent way too much time reading innane opinions of idiots like Taney!

I have no more time to spend on such silliness. Adieu.

I imagine with all the "silliness" that you spend time on that such just might just be the case. Perhaps if instead of lighting candles to and reading the "non-contested legal dicta" filled opinions all those "eminent jurists" who can't even recognize a "conflict of interest" when the "are one", go out with guys and catch a beer once in awhile, you might find a little better balance in your life. It works for me!

Finally, Mon Ami, you are truly filled with angst. Perhaps you should consider just "kicking-back" a little and laughing at yourself for a change, because you really are truly very funny.
1.19.2006 9:26pm
Neal Lang (mail):
Lincoln's actions, and his refusal to abide with Taney's ruling, caused a constitutional crisis that eventually subsided when Congress itself acted to suspend habeus corpus.

Actually, seeing how Congress was not in session during the incubation of the crisis, which was the insurrection caused when the chosen candidate of the 7 Deep South Slave State failed to get elected, it would have been quite impossible for Congress to have suspended Lord Taney's "Writ" in a timely and effective manner. Do you think this could be why the Constitutional "authority" to suspend a "Writ of Habeas Corpus" at a time danger to the "Public safety" and the Republic was given to the "responsible" Commander-in-Chief, and not to the "irresponsible" Congress?

Of course, Lincoln, who also unilaterally "called forth the Militia", in order to save Washington, DC so the Congress would have a place to meet, called for the Congress to come back and go into emergency session. As I understand it, Congress didn't "itself act" in regards to the suspension of Taney's Writ, but, in fact, Lincoln, himself, permitted them to act "ex post facto" on suspending the "Writ of Habeas Corpus" issued for release of the Maryland insurrectionists. Maybe lawyers and "eminet jurists" are just to dumb to realize that letting "insurrectionists" go at a time of National Security crisis created by a rebellion is not a really great idea. Do you that maybe is why the Constituion didn't name the Chief Justice "Commander-in-Chief?
1.19.2006 9:53pm
Neal Lang (mail):
Article I describes the powers of Congress, not the President. The executive powers are described in Article II.

Ah! So based on your formulation, the "power" to issue a "Writ of Habeas Corpus" describes a "power" of Congress, based on its Article I placement. Interesting concept, does any other "eminent jurists" hold the same opinion? I suppose then Chief Justice Taney had, in fact, usurped a Constitutional Congressional "authority" when he issue the Merryman "Writ", making President Lincoln's refusal to honor same quite "moot".
1.19.2006 10:09pm
Mary Katherine Day-Petrano (mail):
Wow. I went away from this thread to do some real legal work, and now I am back and the thread is a trainwreck. I am a very slow reader, so this is going to take awhile to muddle thru. Mostly because, notwithstanding my own admittedly voluminosity in the absence of my necessary voice-recognition disability assistive device, there appears to be others on this thread much more voluminous than I.
1.20.2006 12:42am