The Charlotte News

Wednesday, March 1, 1939


Site Ed. Note: For more on the Congressional power to declare war under Article I, Section 8 of the Constitution, as distinguished from the President's role as Commander in Chief of the armed forces, including the militias of the several states when called into service of the United States, as prescribed under Article II, Section 2, as alluded to in "Wrong-Horse Harrys", see the note associated with "Amendments", February 17, 1941, regarding especially the modern limitations placed on the President's war-making powers by Congress's 1973 War Powers Act.

And as long as on the topic of Presidential power versus that of the Congress, it is time to set forth in some detail what law is being discussed that the President putatively broke in permitting domestic spying--that which seems to be a big yawner apparently to most in the press at least. (Although, is it coincidental that the President's approval rating has now dropped through the floor to 34% in the last month?) Quayle, that is quail hunting in Kenedy County, Texas, township of Armstrong, by the Vice-President seems indeed more topical. Not to say that wasn't interesting enough, too. Hey, accidents happen, Dude.

So what are they, these laws which forbid domestic surveillance, and did the President break them, or, as the Attorney General claimed as excuse a couple of weeks ago to Congress, are the laws subject to interpretation?

The statutes, 50 USC 1802 and 1809, provide as follow:

Section 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

      (a)(1) 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 periods of up to one year if the Attorney General
    certifies in writing under oath that-

        (A) the electronic surveillance is solely directed at-

          (i) the acquisition of the contents of communications
        transmitted by means of communications used exclusively between
        or among foreign powers, as defined in section 1801(a)(1), (2),
        or (3) of this title; or

          (ii) the acquisition of technical intelligence, other than
        the spoken communications of individuals, from property or
        premises under the open and exclusive control of a foreign
        power, as defined in section 1801(a)(1), (2), or (3) of this

        (B) there is no substantial likelihood that the surveillance
      will acquire the contents of any communication to which a United
      States person is a party; and [Emphasis supplied.]

        (C) the proposed minimization procedures with respect to such
      surveillance meet the definition of minimization procedures under
      section 1801(h) of this title; and

    if the Attorney General reports such minimization procedures and
    any changes thereto to the House Permanent Select Committee on
    Intelligence and the Senate Select Committee on Intelligence at
    least thirty days prior to their effective date, unless the
    Attorney General determines immediate action is required and
    notifies the committees immediately of such minimization procedures
    and the reason for their becoming effective immediately.

      (2) An electronic surveillance authorized by this subsection may
    be conducted only in accordance with the Attorney General's
    certification and the minimization procedures adopted by him.  The
    Attorney General shall assess compliance with such procedures and
    shall report such assessments to the House Permanent Select
    Committee on Intelligence and the Senate Select Committee on
    Intelligence under the provisions of section 1808(a) of this title.

      (3) The Attorney General shall immediately transmit under seal to
    the court established under section 1803(a) of this title a copy of
    his certification.  Such certification shall be maintained under
    security measures established by the Chief Justice with the
    concurrence of the Attorney General, in consultation with the
    Director of Central Intelligence, and shall remain sealed unless-

        (A) an application for a court order with respect to the
      surveillance is made under sections 1801(h)(4) and 1804 of this
      title; or

        (B) the certification is necessary to determine the legality of
      the surveillance under section 1806(f) of this title.

      (4) With respect to electronic surveillance authorized by this
    subsection, the Attorney General may direct a specified
    communication common carrier to-

        (A) furnish all information, facilities, or technical
      assistance necessary to accomplish the electronic surveillance in
      such a manner as will protect its secrecy and produce a minimum
      of interference with the services that such carrier is providing
      its customers; and

        (B) maintain under security procedures approved by the Attorney
      General and the Director of Central Intelligence any records
      concerning the surveillance or the aid furnished which such
      carrier wishes to retain.

    The Government shall compensate, at the prevailing rate, such
    carrier for furnishing such aid.

      (b) Applications for a court order under this subchapter are
    authorized if the President has, by written authorization,
    empowered the Attorney General to approve applications to the court
    having jurisdiction under section 1803 of this title, and a judge
    to whom an application is made may, notwithstanding any other law,
    grant an order, in conformity with section 1805 of this title,
    approving electronic surveillance of a foreign power or an agent of
    a foreign power for the purpose of obtaining foreign intelligence
    information, except that the court shall not have jurisdiction to
    grant any order approving electronic surveillance directed solely
    as described in paragraph (1)(A) of subsection (a) of this section
    unless such surveillance may involve the acquisition of
    communications of any United States person. 

Section 1809. Criminal sanctions

(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.

(b) Defense

      It is a defense to a prosecution under subsection (a) of this
    section that the defendant was a law enforcement or investigative
    officer engaged in the course of his official duties and the
    electronic surveillance was authorized by and conducted pursuant to
    a search warrant or court order of a court of competent

    (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.

The period of imprisonment makes this crime a Class D felony under Federal law. (See 18 USC 3559(a)(4))

The heart of the statutes in question, for present purposes, is 1802 (a)(1)(B), indicating that after the Attorney General's review there may be authorized by the President, without court order, surveillance, provided "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Read that again, carefully, if you don't at first understand the plain language of "United States person".

The President has plainly admitted that he authorized the taps of communications, without court order, of United States citizens, which, since it is domestic surveillance at issue, is perforce synonymous here with United States person.

Thus, it appears, without question, that the President has admitted to having deliberately authorized the National Security Administration to commit felonies against United States citizens, making the President an aider and abettor to those same felonies, thus equally culpable for them as the tappers themselves--and, for that matter, the Attorney General who authorized them.

Yet, the Attorney General has stated to Congress in the recent hearings two weeks ago that he thinks the statute is subject to interpretation because wherever there is a conflict between the Congressional authority and that of the Executive branch, there is basis for the Attorney General to so interpret statutes. He even cited a Supreme Court case giving him that authority.

The problem is that this law is not the least bit ambiguous on its face or presenting of any conflict between the authority of the Congressional and Executive branches. It was duly passed into law in 1978 and signed by President Carter, in the normal process that laws become laws. (And by the way, don't therefore resort to things that happened prior to 1978, the effective date of this law, for any, "they got away with it, so why shouldn't we" Ni-yonian-styled argument.)

Where, pray tell, then, is there room, even under the Attorney General's claim, for such interpretation? For there to be an ambiguity, there first must be unclear language or conflict in some manner producing the need in the first instance for interpretation. The Attorney General did not deign to adduce for us what that precise ambiguity of language or that conflict is. He merely recited what sounded as cleverly memorized words, as if by political speech, and declared an ambiguity, non-existent in anything rationally discernible, unless you are insane and an imbecile, that is, in need of his expertly purified, sterilized interpretation to justify that which is patently illegal--and so plainly intended by Congress 28 years ago when the Act was being debated and passed and signed into law by the President.

Yet the Attorney General sees it otherwise.

Much as did one of his predecessors 33 or 34 years ago, a fellow named Mitchell, who decided that Executive Privilege permitted the President to do just about anything the President damned well pleased to do, including most notably domestic surveillance. That, we recall, became something called Watergate.

So, perhaps, the press needs a name for it for it to obtain proper symbolic significance. Since we don't know the names of those tapped, for it is maintained as secret, even from the tappees, (is it you?), we must look to some other source for the spirit of the eponym.

So, how about Chainygate? Scootergate? Libbygate? Leakygate? Kenedygate? Strongarmgate?

Oh, hell, call it what it is: Ni-yon-gate, Redux.

We conclude that there has been a clear violation of the law, a criminal violation of the law. The last time this was claimed to have happened, seems like it was 1998-99, the Congress rose up in arms and delivered Articles of Impeachment, if we recall correctly, and over underlying behavior of obviously no consequence to the Republic--purely personal behavior of the President, not affecting the broad mass of people a whit, unless you happened to be a Ni-yonian, anyway.

The present underlying conduct, by contrast, domestic spying on United States citizens, has profound implications to the Republic.

Where is the hue and cry, now?

Well, we also recall that it took some 11 months after Watergate for the public attention to be turned to it, intervening which came a landslide election for Chester, that is, the Committee to RE-Elect the President.

But perhaps the present situation, in a nation now apparently jaded as to the commonplace of presidential misdeeds, is not enough properly stimulative of prurient interests, we suppose, not uniquely sexy enough, in commoner parlance, and thus unworthy of the sensationalism with which the yellow press pursued the other story from 1998-99. (Where are you now, Mr. Newsweek? We heard you recently yawn about this one and blithely predict that nothing, nothing, would come of this story. Where are you, Izzi? You Tripping to Mars, man?) Too involved? Too finely detailed, huh, Dude?

Hey, Accidents Happen. Get over it.

Al? What? Al who? What was that ye said? We didn't quite get it? Naw, naw; he lost. Remember, Izzy? Can't use that one on us. That they were talking to Al. Think of something else.

What'd ye say? Come 'gain. Naw, naw; who's paying for this microphone? That's right. So we'll say as we damned well please: Fire! Get the water buckets, boys, there's Fire down below. Go!

Hey, Sadie, whar ye headed? The train 's a-comin'. Wait up...

My, my...

Also from the page this date, this poem:

The Way Glory Went

By Loraine Lashley

Myriad crosses crowding a lonely Flander's Field
Where blood-toned poppies drink the sun.
Mock after war the kneel of woman
At an altar
Seeking solace for a sun.

Victory's phantom glory sifts unfinished
Back to the dust of soon forgotten things:
And Time runs swiftly, the pagan way lies hot and red,
And hate and greed and ruthless cruelty
Glean but little
Where crosses lean above the lonely dead...

Where went glory that paused upon this memory-field?
Why myriad poppies crowding watchful crosses
That lean in Spring, in snow and wind and rain?...
This way glory went
This way glory goes
And memory's taps shall sound

Old Fashioned Woe

The times, Heaven knows, are abnormal. Unrest, hatred and dissension fill the world. New terrors have been spewed up out of old terrors. Even the very elements are disturbed.

But in all this medley of awful sounds, one detects a reassuring little note of normalcy. The Georgia peach crop has been ruined by frost. Well, nipped. And since from time immemorial Georgia peach growers have gloomily announced the sad state of the crop, only to have it come through as bountifully as ever, we look on this latest lamentation as a comforting portent.

Generous Directors Fees

Attorney Brock Barkley's digest and analysis for The News of the omnibus City Charter was an undertaking for which he was well-qualified. A former City Solicitor, he knew the ropes. A lawyer, he knew the jargon of the law. A former newspaper man, he could translate it into plain English. And we may be pardoned, we hope, for remarking that the presentation of Mr. Barkley's analysis was another service of The News to the community. Thank you.

Now. Most noteworthy innovation in the new charter is the salary raises which are handed around to the Mayor and his eleven Councilmen. With the City Manager's salary at its present figure and giving the elected governors their full authorized compensation, the City's annual administrative costs would itemize like this:

City Manager....................................................




Eleven Councilmen...........................................




This would be a pretty stiff overhead. Nearly half of it would go for purely executive direction, and would contrast sharply with similar costs in our other municipal corporation, Mecklenburg County. Chairmanship of the Board of County Commissioners, a position which corresponds to the City Manager, pays only $3,600 a year, and the four County Commissioners draw but $5 a meeting, with a maximum of five meetings in any one month.

Wrong-Horse Harrys

List the twelve Senatorial apostles of a popular referendum on war and in the majority of them you find there runs a common strain. For one thing, they all come from that woolly territory beyond the Mississippi, with the single exception of Senator Donahey of Ohio. For another, most of them believe in a Federal government of vast and centralized powers and tremendous monetary outlays, in token of which we set down the names of La Follette of Wisconsin, Frazier and Nye of North Dakota, Lundeen and Shipstead of Minnesota--the two Farmer-Laborites in the Senate. And for still another, the twelve are distinguished by vehement differences with the Administration over neutrality and foreign policy: but for the moment what concerns us most is the group's dominant predilection for Big Government.

The Constitution specifically delegates to Congress, rather than to the states or the people, the authority of declaring war. And it is noteworthy that most of these Senators who would waive that authority in case of an overseas war are the very fellows most eager to stretch the Constitution completely out of shape, without deigning to submit amendments to the people, in order to create a government of domestic powers far beyond the Constitution's conception and, we believe, its intent.

What to make of it, we don't precisely know. But it is worth noting that their differences with the Administration are over its foreign policies, which most of us cordially approve, and not at all with its domestic policies, which many of us cordially detest. That and their willingness to cede certain specific constitutional rights while they assume others they may have no title to.

Site Ed. Note: And, we feel compelled yet again to remark on Sir Winston's admonition, as Cash knew well most of the time but apparently not in this particular instance: Never end a sentence with a preposition or you start the whole damned thing over again. That, after all, is what rules of common English usage are there for.

The Unhit Dog

Let the Legislature's Joint Finance Committee make a move towards taxing oil distributors, and the oil distributors swing into action. Let it cast a speculative glance in the direction of building materials, and the building distributors enter an immediate protest. Let it entertain the notion of socking chain stores, and the chain stores, already beleaguered by the politicians, cry for mercy.

Let the Joint Finance Committee play with the notion of raising income tax rates, especially in the lower brackets, and an angry murmur goes up all over the whole state.

And no wonder. No wonder that all these various business men and individuals should protest tax increases, for they are the ones who would have to pay them.

Which brings up, mates, the puzzling failure of the Joint Finance Committee to propose the one tax left in North Carolina which would be both productive and painless to the point that nobody who had to pay it should protest in the slightest.

That, to be sure, is the tax on mail-order liquor sales to the inhabitants of dry counties, who at present are being served by the bootleggers and neighboring liquor stores. And do the prospective clients, who would pay the tax, protest its imposition? Nope. Do the bootleggers, who would get a taste of government competition, protest? Nope; not audibly at any rate. Then who, pray, makes bold to protest so acceptable a tax? Why, those people we told you about--people like Cale Burgess and the rest of the United Drys who presumably wouldn't have to pay it.

That doesn't make sense, but that's the way it is.

Statesman's Defeat

The resignation yesterday of Manuel Azana as President of the Republic of Spain, brings to mind what Claude Bowers, U.S. Ambassador to Spain, had to say about him in a letter to a friend sometime before the civil war started. He called him "the outstanding statesman of all Europe"--a superlative frequently bestowed on Eduard Benes of the late Czechoslovakian Republic, and perhaps questionable in both cases considering what has happened to their two countries. But Bowers went on about Azana:

"He is trying to create a democratic republic after our own type. He has Communists on the one hand and Fascists on the other to harass him, but he will triumph."

The prediction blushes before the event, yet reflects not at all upon the character of Azana or his devotion to Spain. To the contrary, Spain has been overcome by one of the twin terrors he sought to avoid. Which means that it has gone over to extremism and it is that much further away from the moderation that, sooner or later, the body of the Spanish people will crave once more.

Site Ed. Note: For more on this topic, see "A Masterly Move", October 10, 1938.

Also, we think perhaps he meant, "There have to be educational standards..." or "There has to be an educational standard..." Unless, of course, one is willing to concede that, here, the plurality is also apt to become one, as it did, eventually, of course, with the SAT's. But, never mind that, now. He was a man in a hurry that day, probably, with all this writin' to be done on so many topics of drama and import.

Miraculous Standards

The awful ultimatum handed Central High by the Southern Association of Colleges & Secondary Schools is--well, it's awful, that's what it is. Unless Central High meets certain stipulations having to do with pupils per teacher, books in the school library, etc., why, the association will take it off the accredited list.

And what happens, pray, if the school is taken off the accredited list? Why, its graduates who enter other than State colleges will have to stand an examination on their scholastic preparation. The risk of that condition is that they may fail to pass--in fine, be found deficient. On the other hand, if Central High comes up to the association scratch with respect to teacher-loads, books in library, etc., its graduates will continue to be admitted automatically to the colleges of their choice, and no questions asked.

There has to be educational standards of course, else the progress of students from grade to grade and school to school would be contested by pedagogues chanting, "They shall not pass!" Moreover, examinations are at best an inadequate test of knowledge.

All the same, they are the best the educators have been able to devise, so that to threaten to require them is to threaten in effect to put the little scholars to an ordeal they may not be able to meet, and thus expose the inadequacy of their schooling. If the high school obeys the rules, however, the association promises that nobody will be shown up.


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