Tuesday, December 20, 2005

Ex parte Milligan

and other civil liberty news

This started out as a comment concerning SAWB's last article, and it grew up. You see, he's more libertarian than anything else. From what he said, I take it that he has a problem with what the Administration in Washington is doing, as many Americans who rightly fear too much government and the Imperial Presidency tend to do. On this, he and I are usually in agreement.

What I wonder about, however, is his line of reasoning. That we gentle Americans ought not get ourselves worked up by the Administration's activities because of Presidents in the past, and their activities concerning our Civil Liberties, have been similar. He quotes a National Review article that draws comparisons to what Clinton did back in 1995, and what Abraham Lincoln did back in 1862.

I wonder how much water these arguments hold every time I hear the right (like the National Review or Townhall) invoke the "well, Clinton did it..." defense on any topic, and especially when they bring up Abraham Lincoln's activity that the Supreme Court later declared violently anti-Constitutional.

When these words come from Libertarians I wonder if I am worked up enough about this Administration. Two quick things: alarm bells are ringing, and I thought we were supposed to at least try not to repeat history.

We'll start with the oldest history, and work our way back.

First thing's first. Define irony. We are actually a nation today because we got fed up with a guy named George violating our civil liberties, among other things.

Second, we’ll touch on this "Lincoln did it, it must be OK" thing. (I'm getting a lot of this from Cornell Law Schools' online US code archives, as they are the folks that the FISA links actually take me to...)

The Constitutional Rights Foundation actually has class on just this topic. From this:
The actual right of habeas corpus is not stated anywhere in the Constitution or the Bill of Rights. The authors of these documents apparently believed that habeas corpus was such a fundamental liberty that it needed no further guarantee in writing. The only mention of the writ of habeas corpus in the Constitution relates to when it can be taken away from judges. In a section limiting the powers of Congress (Art. I, Sec. 9), the Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it."

Though SCOTUS didn’t touch this until after the War, they were pretty clear on what they had to say about it in the Ex parte Milligan decision. This from Cornell Law School's archive presenting text of the case itself:
Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.
The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

Not a lot of wiggle room there.

A more easy to read definition can be found in Wikipedia.
The Supreme Court decided that the suspension of habeas corpus was unconstitutional because civilian courts were still operating, and the Constitution of the United States only provided for suspension of habeas corpus if these courts are actually forced closed. In essence, the court ruled that military tribunals could not try civilians in areas where civil courts were open, even during wartime."

Well, I reckon that pretty much sums up the problem with 'enemy combatants' as well. Who needs to worry about the Geneva Convention when US law already has precedent?

Now back to the future. First of all, I have severe issues with the damn media not doing their jobby jobs, National Review and otherwise, by not actually reading the law to us. The same can, in interest of balance, be said about the Democrats attacking this Adminstration by saying he's being 'bad' and the Republicans defending the Administration by saying "it's perfectly legal."

I know the law is big reading, fellas, but that's why you get paid.

I have a severe issue with this Administration running rampant concerning our laws. Why folks like me worry about this sort of thing is because the law he is breaking (at least as far as I read it) is this subchapter of the Foregin Intelligence Surveillance Act. (again, I couldn't find any site outside Cornell's very fine LII archives with this text readily available, I'll have to keep looking to replace this, but I'll go with it now.) The law of the land.
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

I guess the Administration's wishing they'd a got that 'Declaration of War' thingy now, 'cause the 'Authorization of Force' bill is looking pretty thin.

As for Clinton’s application of physical searches, executive order linked for us by SAWB, those were a completely different Chapter, and it don't look like what he did (at least in this instance) would be illegal. I would direct you to Chapter 36, Subchapter II “S” 1822.

What this Administration has to worry about now is the penalty for violating FISA:

(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

Federal Jurisdiction over the offense if the person committing the violation was an officer of the United States at the time the offense was committed......nice speech last night, by the way. I guess now we get to find the statute that authorized this Administration to act in the ways it did.

But don’t take my word on any of this, (as we saw with the Tocqueville quote) you can view the incredibly extensive Foreign Intelligence Surveilance Act archive by clicking here.


S.A.W.B. said...

As it appears that I did a poor job of outlining my points in my original article, allow me to restate them here.

1 - US Presidents ordering US citizens to be spied on is not new news. It is, in fact, old news.

2 - US Presidents skirting, bending, or ignoring the law, with regards to information gathering, is also not new news. It is also, in fact, old news.

3 - The hyperventilating, left-wing, nut-job brigade, may want to hold up on the RSVP to the Big Bad Dubya Impeachment Orgasm party, as it would appear, at least to my laymans eyes, if previously sitting US Presidents pulled this manner of shenanigans, and were not prosecuted, then perhaps there is precedent to not prosecute the current sitting US President for said shenanigans.

4 - Yes, i'm irritated about this, however, we don't have all the facts out yet about who, what, when, where, or why the shenanigans took place. It is completely feasable that the shenanigans, were in fact, legal. Let's not make this the issue of the month quite yet, else I'll be forced to invoke Texas Rules for those of you currently in a pre-orgasmic state over the possibility of 'finally nailng that bastard in the White House'.

5 - If, in fact, the shenanigans prove to be legal, I look forward to seeing the aforementioned nut-job brigade walking around with your collective wangs out for about a week. If, in fact, the shenanigans prove to be illegal, then I would hope that punishment is laid out in accordance to the law of the land.

6 - The media is hereby ordered to play in accordance to Texas Rules for the next week, as they have done their usual, bang-up, piss-poor job of reporting ALL the facts. Gonna be a drafty week too...

Dante said...

"I wonder how much water these arguments hold every time I hear the right (like the National Review or Townhall) invoke the "well, Clinton did it..." defense on any topic, and especially when they bring up Abraham Lincoln's activity that the Supreme Court later declared violently anti-Constitutional."

I don't think the point is that it must be OK since Clinton did it. The point is that we never heard about this when Clinton did it. Now Bush does it and it's a big deal? Sounds like the outrage is a little phony. Sounds like somebody is just gunning for Bush and looking for things they don't care about since they didn't care enough to cover this when it happened with Clinton.

And then Pat gives a perfect example of my point by saying, "I have a severe issue with THIS Administration running rampant concerning our laws." (emphasis mine). Don't have a problem with previous administrations doing the same thing but Bush does it and it's a big deal?

Also, if the Administration needs a Declaration of War to wiggle out of this, they'll probably take the Limbaugh route and claim that the bill signed by Congress authorizing the President to use force in Iraq is a declaration of war. There's about as much legal merit in that argument as there is in "sexual relations" not including oral sex. Not much, but enough for a "Get out of Jail Free" card since what Congress authorized the President to do sounds a whole lot like war.

Patrick Armstrong said...


1. You are correct, and I agree.

2. You are very correct, and I agree.

3. The hyperventilating, left-wing nut-job brigade (and we gotta come up with a better anacronym than HLWNJB) always do that over any issue. And, any talk of impeachment is putting the cart far before the horse in any case.

What is more important is the concern everyday Americans (and some libertarians) have with this Administration concerning this issue.

4. This is also correct, and I again agree. The part of FISA that I found that -appeared- to have been violated can be counteracted by statute. I wonder if the bill Congress gave the Administration can be considered as such. I'm sure that's how it will be argued.

5. The last thing we would want for this country is that, based on asthetic security.

6. The media should be hereby ordered to do their damn jobs and get some really real research on the table.

RE: Dante's post.

I do have severe problems with what this administration is doing. Mainly cause that's what we happen to be talking about now. I've said plenty of times in the past that Clinton had his share of shenanigans. On this current issue, however, I even gave the link to the seciton of FISA that Clinton initiated. While they are both part of the same bill, the sections regarding physical searches (Clinton) and electronic surveillance (this Administration) require different legal standards.

I also hedged, quite nicely I thought, that after reading Clinton's executive order and applying it to the FISA, it didn't appear to be an illegal order, while this Administration's activity seemed to violate the sections of the FISA I also listed.

Apples and organges here, but also media (right and left) not actually investigating what the law actually is.

S.A.W.B. said...

QUOTE - "I also hedged, quite nicely I thought, that after reading Clinton's executive order and applying it to the FISA, it didn't appear to be an illegal order, while this Administration's activity seemed to violate the sections of the FISA I also listed."

The only problem with this statement is that there is no such thing as an illegal executive order. As it was said by Paul Begala, Clinton White House aide in 1998, "Stroke of the pen, law of the land. Kinda cool." President Clinton used executive orders to manufacture legislation without the potential roadblocks of congress (See EO13083, among others.)

I'm sure US Presidents before Clinton have used the same tactic to some degree, but I'll decline to look up the EOs now, as I'm somewhat pressed for time. Just keep in mind that until the Juciciary rules otherwise, or Congress passes either a Federal Statute or a Constitutional Amendment is enacted, that 'stroke of the pen, law of the land' still stands in effect.

dadvocate said...

For the Bush supporters to argue that it's OK because so-and-so did it creates the slippery slope and makes it even harder to retain or regain these freedoms and rights.

Its disappointing the so many of the right leaning talk show hosts, etc. defend Bush (or anyone) on this issue. Which points to the primary problem, the Democrats, et al don't care about these rights, they just want to attack Bush. The Republicans, et al don't care either, they just want to stay in power.

The argument I heard on the radio this morning, attributed to Cheney, is that why do you think the terrorist haven't attacked again since 9/11? We're protecting you. But look at how long it was between the first attack on the WTC with the rental trucks and 9/11. None of this stuff going on then. Frankly, while I think terrorism is a serious threat, they don't seem to have a great deal of resources to pull off a lot of attacks within our borders.

Plus if the Republicans were truly serious about security, they'd do something about our borders.

Let's try this quote attributed to Benjamin Franklin, "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Patrick Armstrong said...

I've agreed with SAWB, clarified with Dante, and now I'll agree with DADvocate.

Strange consensus to be sure...

It does -appear- (even to me) that many Democrats (at least the ones in office and punditry) only want to attack this Administration.

I can't tell you how much that enrages me, and I'm a Democrat.

If they actually did care about our rights more then their own political points and careers and skins, I'm sure I wouldn't be one of the only people to be talking about the letter of the laws. I have not found another source anywhere that is actually quoting US code.

That sets alarm bells a-ringin,' too.

I don't get paid to do my own research, I don't have staffers or interns and I don't get to publish in the MSM - and I pointed out the exact chapter and subsection of US Code that this Administration seems to be violating.

(note the hedge alert in italics ;)

But keep in mind that, like folks who vote Republican, many of us Democrats down here in the rank and file are outraged for the right reasons. Otherwise I'd have just linked to and regurgitated any 3 articles in the Nation, Slate and CNN instead of spending four hours pouring through Cornell's online archives.

Though I will be busy for the next several nights due to festivities, I'm going to investigate that whole 'executive order' thing too. SAWB probably has me on that one, but there's something I remember reading about executive orders and their inherent legality.

But that could have been an archive from back before the Imperial Presidency...

Patrick Armstrong said...

Tucker (this was the same guy on Crossfire?) Carlson has something to say about the whole Snoopgate issue. There's also some really good ones over at Second Civil War.

S.A.W.B. said...

Here's a little more OHNOES!!! for the teeth-gnashing lefties. And yes, I'm stealing the headline directly from Fark.com -

New York Times, 1982: "Federal court ruled it's OK to tap phone calls between American citizens and foreign nationals." New York Times, 2005: "BUSH IS A CRIMINAL"

I love it when an ill-formed plan falls to tatters...

patsbrother said...

Whoopie. We can wiretap Americans when they call up foreign nationals. That must mean we can wiretap Americans anytime, right!?

Um, no: all that tells us is we can listen in on Americans' calls to foreign nationals.

I do not believe the current to-do deals with that specific scenario, but something much broader: Americans speaking to Americans.

Hurdy-yurdy-yurdy, what difference does that make? you say. Hurdy-yurdy-yurdy.

Um, the whole National Security excuse makes a whole lot more sense when there are possible foreign agents involved. Call it a hunch.

Nice try on the whole overpresumptive conclusion thing, though; I'm sure paT would have believed you and cursed the Times anew.

P.S.: thank you for sending my parents the picture-card: it is a lovely portrait of your family.

But it only says "Greetings" doesn't it?

Some people just hate Christmas I guess.

[Nondenominational (non-)Entity] Bless the Republican Spin Machine and all Its well-reasoned logic!

Patrick Armstrong said...

Please pardon Sprout. He's been hanging almost exclusively with the folks since he got home for Christmas. Between them, the beloved yappy dog, and his new 'haircut', he may be ready to loose it.

Yurdy? Is that some obscure law school terminology?

So let's get off the personal stuff and get back to the issue, shall we? Ratchet down the jackassery before I have to ratchet up the delete button.

Concerning the real issue, a lot of folks are putting the cart waay before the horse on this one. First of all, based on the law (some of which I have provided links to), this Administration may not have done anything legally wrong (so far as the letter of the law is concerned).

That's a pretty big pill some folks in the media and some enemies of this administration are going to have to swallow right now if they want to actually make their case to America.

It may appear that this Administration has violated some statute, but appearances do not a crime make. That requires evidence to prove, and we just don't have that yet. I surely would like to know what better things the media and the Congress are doing instead of actually looking for that evidence.

Oh yeah, they're running outrageous headlines and holding outrageous press conferences. Because those are so much more impressive than actual evidence.

And if there is any additional reason needed to excoriate the NYT for this one, it would be that they have held onto this story for so long, and still have failed to produce what Code, Chapter and Section they are actually claiming this Administration of violating. Their crimes in my mind go far, far beyond any sales driven headline their editorial staff may concoct.

Did this Administration violate the spirit of the law? I surely think so. From what everyone has said here, it looks like a lot of folks think that what has been going on is a violation of the spirit of the law, but they aren't ready to say that the letter of the law has been violated.

Noone here seems to be defending what the Administration has done on the merits of the activity alone, but plenty are taking the left and the media to task for flying off the handle.

Did this Administration violate the letter of the law? I think they may have. I have given links to the actual sections of US Code I think were violated. But there's a lot of law out there, and as SAWB has pointed out, 1. other Presidents have gotten away with similar activity without being held legally responsible, and 2. that an executive order carries significant legal weight. (I have yet to find evidence that suggests otherwise.)

The battle between personal freedom and security has been going on forever, as SAWB has rightly pointed out.

The problem here is making the case, and right now neither my side of the aisle nor the media are actually doing it. That is a problem so large, my words cannot describe it.

What they are doing is making an assumption that all people are going to agree with them that when the spirit of the law is violated, the letter of the law is violated.

You know what happens when you assume, don't you?


And, for the record, President Clinton was charged with perjury because he was under oath to tell the truth and then lied. President Bush has, to my knowledge, not taken such an oath in front of any court, outside the court of public opinion.

Patrick Armstrong said...

I was so caught up with the jackassery, I forgot to actually respond to SAWB's link.

The most intriguing thing about that article is the comments section, which is best read all the way through, concerning cases of past Presidents vs This President.

I find the most telling comment on that threat to be from 'Alex':

"Absolutely right, Mithridate - according to FISA, the NSA can conduct random and undirected interceptions of foreign communications if those communications contain certain key words. (I'm not a supporter of that, by the way, but regardless...) What FISA does not allow is warrantless directed surveillance, that is, a specific wiretap against all communications of a certain person, and that appears to be, by Bush's own statements, what was going on."

Glad to know that blog readers can actually conduct a more in depth discussion of this than the MSM...

patsbrother said...

First, "Hurdy-yurdy-yurdy" is the favorite exclamation of the beloved Muppet Chef (unless of course my time at school has frazzeled my little mind and I have completely made that up).

Second, the italicized quotation of your last post appears to agree generally (though not exactly) with the substance of my post, yet mine is apparently a bouquet of jackassery. Why? Just because I say it with a smile? You don't like Yuletide cheer, do you, paT? You must hate Christmas, too. Sigh. I suppose this blog is another "victory" in the War on Christmas.

Somewhere the littlest elf is crying.