The Green Papers Commentary

"Eavesdropping first, Warrants later", the 4th
Amendment and President George W. Bush

Thursday, January 26, 2006

by Richard E. Berg-Andersson Staff

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.--


Recently, a controversy has erupted over the news that the National Security Agency has, with specific presidential authorization, been eavesdropping on telephone conversations in which suspected terrorists have been parties, even if the other conversant is not suspected of terrorist activity and might even be on American soil. There is a dispute over whether or not the NSA is only monitoring calls between someone in this country (suspected terrorist or no) and someone in another country or if the NSA is also targeting calls between persons (one of whom, at least, is believed to be a suspected terrorist), both of whom are within the United States- the Bush Administration claims to be only monitoring international calls (and there is a political battle now raging over what is, or is not, an "international call")- which forms but one part of this controversy. Another part of this controversy, and the part I will be specifically addressing in this piece, is over whether or not the powers of the Presidency as granted in the U.S. Constitution, allow an agency of the Executive Branch- in this case, the NSA- to trump the 4th Amendment of that same document quoted above, for many- if not all- of the calls to which the NSA listened in were, apparently, monitored prior to the granting of a Warrant by a court as seems plainly required by that Amendment.

The current Bush Administration's view as to what the President can and cannot do as regards this activity is largely based on a concept known as the "Unitary Executive": in this doctrine, the President of the United States is held to be free of obligations to follow a given law if he can construe the inherent powers of the Presidency as stated (or seen to be stated [by whom? the President and his advisers, of course!]) in the Constitution in such a way that he does not have to fulfill such obligations. The term "Unitary Executive" is used because the Administration is held to stand alone, as a unit, apart from the other two Branches of government.

The device by which a President can more or less- according to the Unitary Executive concept- exempt himself from Federal laws (I can hear the terminology used by Justice Anthony Kennedy during Oral Argument re: the case of Bush v. Gore in my head as I type this: in essence, the President is "unmooring" himself from the Constitution whenever he deems it appropriate to do so [and don't think I don't see the obvious connection between the Bush Administration's current justification for the Unitary Executive and the Bush Campaign's one time argument that the Florida Legislature could, indeed, "unmoor" itself from that State's Constitution in order to certify a slate of Bush Electors in the event that the recounts in Florida were to continue and Al Gore were to be declared the actual winner there!]) is the so-called "Presidential Signing Statement", which is a written statement the President attaches to a bill he has signed into law explaining what he thinks the law actually means (the original purpose of such Signing Statements was to promote an Executive "spin" regarding a given law: Congress would always have its take on a law known via the bill's Preamble [the "Whereas"'s followed by a "Be it Resolved" which form the heading of Federal statutes]- the notion here was to allow the courts which would be, perhaps, someday called upon to interpret and apply the law to see what the Executive thought the purpose of the law in question actually should have been).

Presidential Signing Statements have a long history, going back to at least President James Monroe, but- of late- it has become fashionable to make them as much a part of the "Legislative History" of a piece of legislation as the actual history of the bill in the legislature (it was Edwin Meese, Attorney General during the latter years of the Reagan Administration, who first made a comprehensive effort to have such Signing Statements included in legal reference works): in a sense, they have become an attempt to take the conservatives' notion of Intent of the Framers one step even further- to have the Judiciary interpret the law based much more upon Intent of the Signer- the President- than the intentions of those who actually drafted, debated and passed the legislation. Where President Bush has taken the Signing Statement- a controversy in and of itself- is to an even higher level of hubris, the most famous example of which is- at least so far!- his Signing Statement re: the bill sponsored by Senator John McCain (R-Arizona) relating to not using torture while interrogating what the Bush Administration euphemistically, where not also disingenuously, calls "detainees" (rather than what they actually are- Prisoners of War): Bush's Signing Statement states that, as constitutional Commander in Chief of the Nation's Armed Forces during wartime, he feels that he would be free (assuming he can plausibly relate what he might want to do to the President's powers as Commander in Chief as stated in the Constitution, of course!) to ignore the very bill he had just signed into law! (But, then again, if President Bush did want to allow the torture of said "detainees" under his Office's War Powers, wouldn't they then become bona fide Prisoners of War- and, thus, subject to the Geneva and Hague Conventions- in any event? No?? The rampant hypocrisy involved here is almost palpable!)

The Unitary Executive is not only potentially dangerous to concepts such as Republican Democracy and Liberty but it is not even all that new. Instead, it is merely a modern variant of a concept as old as the Union itself- something that, indeed, derives from the political philosophy of many of the Federalists of the late 18th Century from whom- whether its members realize it or not- today's Republican Party, as an institution, has inherited much of its own political philosophy. (By the way, I use the phrase "as an institution" because there are a minority of Republicans who do not accept all, or even most, of this concept; however, this does not change the fact that- in more areas than not- the modern Republicans are the present-day equivalent of the old Federalists.) That "something" is the notion that the President of the United States is, for all intents and purposes, an "elected King"- as the term "King" was understood within the framework and history of English Constitutionalism as of the time of the Framing of the American Constitution in 1787.

Now, it's not that these Federalists wished to establish an American "monarchy" per se. John Adams, for instance, was- despite the brickbats thrown his way by the supporters of Thomas Jefferson in the Elections of 1796 and 1800 (not to mention even earlier- while Adams, as Vice President, sat as the first constitutional President of the U.S. Senate)- just as good a "republican" ex-Patriot as Jefferson himself: it's just that Adams and Jefferson had quite different ideas of the role of the President in the then-new Federal System which would now be linking the Union- an overarching "grand Republic"- to its already-existing constituent "petit Republics", the States.

Adams' view (shared by many of his fellow Federalists: though, truth be told, the Federalists were at least somewhat split on this matter- many Federalists also, if not in contradistinction, believed that the best check on overall governmental power would be the courts which would have to interpret and apply any laws passed by Congress and signed- or passed again by Congress via override of a veto- by the President; this concept of Judicial Review would eventually be most strongly asserted by Federalist John Marshall as Chief Justice) was best stated in Adams' own proposal for what the official title of the office which he himself would one day hold- the Presidency- should actually be. Adams openly suggested that the President be formally addressed as "His Excellency, the President of the United States, and the Guarantor and Protector of the Liberties of the Same". Thankfully for all those in, for instance, today's White House Press Corps, the first occupier of the office- George Washington- readily accepted the more "republican" title of "Mr. President" (which Adams, seeing it as rather pedestrian, did not at all like: after all, Adams himself was- at that very time- being addressed by the Senators as "Mr. President" in relation to Adams' task of chairing the upper house of Congress).

But there is much in Adams' wordy proposal which well explains this 18th Century Federalist- now become 21st Century Republican- view of the Presidency, for- as part and parcel of that view- is the idea that one of the President's most important tasks- if not the most important task- is that of being the "Guarantor and Protector of the Liberties" of the People of the several States. And, again, this can all be traced back to the English Constitution- and its concomitant Common Law- which so obviously influenced the development of American Law and Politics during Colonial times and on into the early Federal period as the then-new Constitution of the United States was first becoming operational.

Under the English Constitution, as it evolved (and keep in mind that the English- now British- Constitution was, and remains, "unwritten", though only in the sense that there is no one single document that everyone can point to and say "that's the British Constitution" the way one can re: the American Constitution; of course, pretty much all of what is considered to be the British Constitution is, indeed, written down- whether it be in, say, a Statute of Parliament or a court's decision establishing legal precedent as the result of an ordinary judicial proceeding), the King- in English legal parlance, "the Crown" (for the Members of the Executive, whatever these might have actually been at any given point in English legal history, were agents of the King- when any of them acted, it was as if the King himself had acted: thus "the Crown", as a term of art, included not only the King but anyone who could legally act in his name)- was the Fountainhead of Justice. This assertion on the part of the English Kings reigning during the first centuries after the Norman Conquest was necessary in order to achieve two principal legal and constitutional objectives ancillary to the establishment of rule over the English by the Normans and then the Plantagenets: first, the establishment of but one set of legal precepts throughout the entire kingdom (the Common Law, as opposed to- as well as above- the various and sundry, and often highly differing, Shire- or County- "Law"s of the Anglo-Saxon era) and, second, the power of the Crown to, if necessary, remedy any defect of this Common Law (the beginnings of that legal concept known as Equity Jurisdiction).

Throughout the entire period of English History prior to the American Revolution, the Crown had rather wide sphere of constitutional and legal action (though the King could be reigned in by powerful underlings, as happened when King John was forced to accede to Magna Carta in 1215: of course, the Crown could even be overthrown as well, as happened during the Puritan Rebellion which culminated in the Regicide of Charles I in 1649 and the rise of the Cromwells [followed, in due time, by the Crown's Restoration in 1660 and a later reconfiguration of the Crown's relationship to Parliament in the wake of the Glorious Revolution of 1688]). The British concept of the Crown not at all acting but upon the responsibility of a Cabinet Minister- which laid the strongest groundwork for Parliament finally emerging as the real center of political power in the United Kingdom (thereby allowing it to evolve into what H.G. Wells, in his Outline of History, called a "crowned republic"- the very essence of constitutional, as opposed to absolute, monarchy)- was a later, 19th Century, development (although foreshadowings of this concept were already being debated during the early years of the reign of King George III, at the same time many in his rebellious American colonies were already declaring him Tyrant). This sphere of rather wide Crown action is known, in English legal history, as "the Royal Prerogative" and is best described, as it once actually was in its heyday, in the following brief excerpts from both a long ago historian of Comparative Politics and a not quite so long ago commentator on British Constitutionalism:

[F]rom the accession of the Tudors till the final expulsion of the Stuarts the Crown and its servants maintained and put into practice, with more or less success and with varying degrees of popular approval, views of government essentially similar to the theories which under different forms have given rise to the droit administratif of France (NOTE from REB-A: droit administratif is best- admittedly freely- emended in translation as "legal rights of the administrative branch of government" and seems best defined as "not admit[ting] a claim on the part of any one to delay or overturn the public interests in order to get his own grievances redressed" [from A. LAWRENCE LOWELL-- Governments and Parties in Continental Europe (1896)])].

The personal failings of the Stuarts and the confusion caused by the combination of a religious with a political movement have tended to mask the true character of the legal and constitutional issues raised by the political contests of the seventeenth century... [Those in support of the Royal Prerogative at the time] no doubt underrated the risk that an increase in the power of the Crown should lead to the establishment of despotism. But advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens; they were struck with... the necessity for enabling the Crown as head of the nation to cope with the selfishness of powerful individuals and classes...

The doctrine... that the prerogative was something beyond and above the ordinary law is like the foreign doctrine that in matters of high policy the administration has a discretionary authority which cannot be controlled by any Court. The celebrated dictum that the judges, though they be "lions", yet should be "lions under the throne, being circumspect that they do not check or oppose any points of sovereignty"... would, if logically worked out, have led to the exemption of every administrative act or, to use English terms, of every act alleged to be done in virtue of the prerogative, from judicial cognisance.--

A.V. DICEY: Introduction to the Study of the Law of the [English] Constitution (1920)

I will come back to Mr. Dicey's words, as I have quoted them above, a bit later in this piece: for now, I will here only note that, during the 18th Century, began the inevitable conflict between this Royal Prerogative and the counterassertion of the rights of the English- becoming British- people through the powers of Parliament. The American Revolution itself might well be viewed as a variant of this conflict, in that the legislative Assemblies of the American colonies were- in the decade or so leading up to that conflict- claiming the same powers to alter Common Law, as well as to thwart the Royal Prerogative, as was being claimed by the House of Commons at Westminster (the chief difference being that Parliament agreed with the Crown that colonial legislatures should not at all be treated as miniature versions of Parliament).

Of course, in the United States of America the American Revolution ended up creating, there was- and still is- no "Crown": rather, on this side of the "Pond", it is the Constitution (including the Constitutions of the several States, insofar as they alone are concerned) which is the Fountainhead of Justice (after all, one of the purposes of the Federal Constitution's "More Perfect Union", as stated in its very Preamble, is "to establish Justice"): nevertheless, the Federalists generally saw the office of President- and his Administration- as embodying at least some- if not most- of the attributes of the English Crown (hopefully without Tyranny, as that had been defined by the Patriot cause during the American Revolution), including the notion that it was the President's job to guarantee and protect the Liberties of the People (indeed, only the President takes an oath to "preserve and protect" the Constitution as well as "defend" it- all other Federal officers, whether appointive or elective [even the Vice-President; even those who are first joining the Nation's Armed Forces], take an oath merely to "support and defend" the Constitution [not that this oath is at all unimportant!]) and that these duties, indeed, necessitated something very much along the lines of the French droit administratif. This was, of course, anathema to the old Republicans who would end up supporting Thomas Jefferson over John Adams for the Presidency once President Washington had retired (though, like the Federalists, these Jeffersonian Republicans were at least somewhat split: Jefferson himself favored Legislative Supremacy, in which Congress was to be paramount, with the other two Branches- together being America's equivalent of Britain's Ministers of the Crown of the time- subservient to the Will of the People as expressed in Congress; James Madison, meanwhile, supported the notion that the three Branches of government were co-equal: this was known as the Egalitarian Principle in which each of the three Branches had just as much power to determine the constitutionality of a given governmental act as any of the other two [two of the Branches agreeing on constitutionality would, thus, trump the third]. However, the Jeffersonian Republicans, as a whole, tended to agree that American "Ministers of the Crown" [administrators and judges] should never have the upper hand- while the Federalists, as a whole, tended to agree that the "rabble" who might come to dominate Congress [most notably, the House of Representatives, at the time the only directly-elected portion of the new Federal Government] should not ever be allowed to prevail. It is interesting to note that Jefferson's position was, in reality, none the less based on something along the lines of the droit administratif than Adams', except that the Republicans' Americanized version of the droit administratif favored the legislative side rather than the executive).

The Federalists' Americanized version of the droit administratif was essentially this: upon his inauguration, the President would have four years in which to carry out his duties (including those of Preservation, Protection and Guaranteeing) pretty much unfettered (subject, of course, to such express limitations as stated in the Constitution: for instance, two-thirds of each house of Congress could override the President's aforementioned veto of a bill passed by Congress); if the People of the several States, as represented by the Electors chosen every four years either by them or their State's Legislatures (depending), didn't happen to like how the President had gone about his duties, said Electors could then always place someone else into his High Office once the incumbent's four years were up. But, until the President had been so replaced, he should- as, albeit via the indirect method of election by the Electoral College, the only Federal officeholder responsible to the Nation as a whole (thus, by extension, no less the head of this nation than the English King was head of his)- be allowed many of the presumptive powers found within the Royal Prerogative in Britain without the interference of either Congress or the Supreme Court. So said these Federalists.

And so, evidently, say many- if not most- of those who today are Republicans supporting the Bush Administration's position on warrantless wiretaps: for their current concept of the Unitary Executive is, for all intents and purposes, the exact same thing! But, much like the proponents of the Royal Prerogative of the Tudors and Stuarts, those who so support the Bush Administration's use of pre-Warrant wiretapping as a vehicle for thwarting Terrorism- to paraphrase A.V. Dicey's words- "underrate the risk" that this policy "should lead to the establishment of despotism", no matter how much they might, indeed, "not intend to sacrifice the liberties or invade the ordinary private rights of citizens". The very danger, obviously, is that such sacrifice and invasion of Rights and Liberties will, nonetheless, occur, regardless as to whether or not such sacrifice and invasion be purposeful.

Because, in the end, purposefulness does not really matter. Re-read the 4th Amendment quoted at the head of this very piece! "The right of the people to be secure... against unreasonable searches and seizures, shall NOT be violated"; "NO Warrants shall issue but upon probable cause...", etc. I repeat the question that is the very title of this Commentary: What part of the word 'NO' does the White House NOT understand?!

The issue at hand is precisely the same as that stated by A.V. Dicey in my quotation of him earlier in this piece: for the argument that the Administration's wiretapping-BEFORE-warrant is "something beyond and above the ordinary law" is, indeed, "like the foreign doctrine that in matters of high policy the administration has a discretionary authority which cannot be controlled by any Court" and, in fact, "would, if logically worked out" lead "to the exemption... of every act alleged to be done in virtue of" what the Bush Administration claims (wrongly!) is lawful presidential authority "from judicial cognisance". It matters little, if at all, that the Administration might actually receive the necessary authority- the warrant- from a court after wiretapping has already started: any wiretapping done prior to the receipt of a valid warrant is, by the very wording of the 4th Amendment, in violation of that Amendment's explicit command. In addition, there is no significant difference between a wiretap installed before a warrant is granted and a wiretap installed without the government even bothering to seek a warrant in the first place-- it is, as a practical matter, one and the same thing! (And this is not to even mention the very real possibility that evidence gathered from a wiretap pre-warrant would not be allowed at trial by the judge in any case the government might afterwards bring against a suspected terrorist so tapped [thus it appears that the purpose of the wiretaps might well be preventative, where not merely palliative, rather than having any real evidence-gathering function as regards a potential criminal trial: in other words, the proverbial "fishing expedition", which creates its own difficult 4th Amendment-related legal issues].)

I want to make it abundantly clear that I myself am not at all opposed to the legitimate wiretapping of suspected terrorists, even if they are making an call from outside the country to someone within this country who is not at all suspected of being a terrorist: if there might be probable cause to believe that someone is a suspected terrorist, then so eavesdropping on that person- even if the other party to the conversation be completely innocent- is something well covered by the 4th Amendment. But the Administration should have to get a warrant from a court to so wiretap first! The mistaken notion of this particular 43rd "elected King" of America that he should be allowed sweep aside the requirements of America's own Constitution simply by a wave of his hand accompanied by the mere assertion that he happens to be the Commander in Chief of the Nation's Armed Forces in wartime is no different in kind than that of which I wrote about the Jose Padilla case in an earlier Commentary of mine. As in that other situation of which I wrote a year and a half ago, the Bush Administration's actions in this regard are contrary to that concept known as the Rule of Law which is a fundamental underpinning to the entire history of Anglo-American constitutionalism and jurisprudence.

Where one's leaders break the Law (even where a misinterpretation of one's prerogatives under the law are used to justify the breach), one cannot then much complain that the led have little respect for the Law either!


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