The Charlotte News

Saturday, March 11, 1939


Site Ed. Note: Added previously, the other two editorials of this date remain separate: "Hiram Looks At Guam", on the xenophobic fear underlying California Senator Hiram Johnson's uncharacteristic bolt from two decades worth of isolationist stands to support fortification of Guam in the face of apparent fortification, or preparation for same, by Japan in the Caroline and Marshall Islands; and "Toward Real Appeasement", praising Britain's decisive war-wagon rescue of a British freighter from the jaws of the pursuing Nazi-Fascist pirate ships, ghosting as Franco's navy, and its implication for potentially standing down the German and Italian navies' efforts to win control of the Mediterranean through intimidation.

"Birds of a Feather" brings back to mind a current news story which seems to be languishing without an audience or without much of a megaphone to create an audience anyway, (though faltering respect for the President and Congress to new lows is significant to give it the voice it properly deserves). This story merely involves the President of the United States and the top law enforcement officer of the land, the Attorney General, having plainly violated the Foreign Intelligence Surveillance Act of 1978, by wiretapping, without a warrant or court order, domestic conversations involving United States persons, a felony punishable by up to five years in prison. That's all.

Not only that, of course, but it involves, more fundamentally, a complete abdication of respect for the Constitution, specifically the Fourth Amendment, something which has been particularly glaring in this Administration's consistent pattern of behavior for much of the last five years since September 11, 2001. (And, is it not significant that this President was quoted in 2000 in a Florida newspaper as saying he "hated the 1960's"?)

The New York Times has indicated in an article published March 9, 2006 that a deal has been struck between Congressional Republican leadership and the White House whereby intelligence calling for wiretaps of this type, where there is "probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization," will be shared with an oversight seven-person intelligence sub-committee in Congress, and subsequent spying will terminate after 45 days unless a warrant is obtained or satisfactory explanation by the Attorney General provided to the subcommittee as to why it should continue without a warrant. This deal will be in lieu of further investigation into abuses by the Administration of the 1978 F.I.S.A. laws. Democrats find the deal unacceptable, but it appears the majority of the Republican controlled Senate favors it.

What ho?

Such sounds like a backroom usurpation of our Fourth Amendment rights. Neither the President nor the Congress has the right to structure "deals" which compromise liberties in the Bill of Rights.

If so, then such a "deal" might be struck next week under which the King, that is the President, may tell you precisely what you may think, say, or write, as long as he and the Attorney General deem it inimical to the domestic security of the country, in furtherance of some scheme of a terrorist group--never mind that silly old outmoded Constitution, the First and Fourth Amendments and the rest.

That is precisely what the Republicans now in Congress are "dealing" to do with our Fourth Amendment protections.

But, these protections are meant to be subject to review by a neutral and independent magistrate, not by elected politicians, with all of the vagaries attendant to politics in the offing. Such is an outrageous abuse of power and, if ultimately approved by the Congress, all of these bums approving this "deal" should be thrown out on their ears come November. They are whitewashing Executive criminal conduct and substituting for it a compromise "deal" in the dead of night which compromises our freedoms, handing them to partisan elected officials, who are supposed to be lawmakers, legislating laws subject to judicial review properly detached and neutral, not exclusively to their own partisan standards determined by majority rule of the moment. Such implies, instead of Constitutional rule of law, ancient Roman rule incarnate or worse, the newer Roman rule of the 1930's, government by men, men certainly always capable of turning despotic in their lust for power, just as we saw in our own history 35 years ago, when the President authorized the Huston Plan to enable widespread domestic surveillance under the aegis of "inherent executive power" to maintain "national security".

What thou sayest, Mr. President, and Congress, we as citizens must bear and bear Happily.

But not so.

What does it say, this Fourth Amendment?

"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." [Emphasis supplied.]

Generally, the courts have determined that what is a reasonable search and seizure is that which is based on a properly obtained warrant from a neutral and detached magistrate, or on reasonable and probable cause otherwise obtained under narrowly prescribed exceptions to the warrant requirement, such as where there is plain view observation of criminal conduct and exigent circumstances justifying immediate search without first obtaining the warrant. Whether a search has been conducted reasonably is then always subject to subsequent judicial review, and if a determination is made that it isn't, the solution typically is to exclude evidence obtained from it.

The Supreme Court, however, has allowed for the possibility of exceptions to be determined by Congress in the case of national security where strictly foreign intelligence is at issue with respect to "activities of foreign powers", but not where domestic surveillance is at issue to ferret out purely domestic subversion.

In United States v. United States District Court, 407 US 297 (1972), a case dealing exclusively and expressly only with warrantless surveillance of alleged domestic subversion, not that involving any foreign power, the Court, in a unanimous opinion filed by Justice Powell, stated:

"We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, 1, of the Constitution, to 'preserve, protect and defend the Constitution of the United States.' Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President--through the Attorney General--may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government. The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946. Herbert Brownell, Attorney General under President Eisenhower, urged the use of electronic surveillance both in internal and international security matters on the grounds that those acting against the Government

'turn to the telephone to carry on their intrigue. The success of their plans frequently rests upon piecing together shreds of information received from many sources and many nests. The participants in the conspiracy are often dispersed and stationed in various strategic positions in government and industry throughout the country.'

Though the Government and respondents debate their seriousness and magnitude, threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them. The covertness and complexity of potential unlawful conduct against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances. The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens.

It has been said that "[t]he most basic function of any government is to provide for the security of the individual and of his property." Miranda v. Arizona, 384 U.S. 436, 539 (1966) (WHITE, J., dissenting). And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in Cox v. New Hampshire, 312 U.S. 569, 574 (1941):

'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.'

But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development--even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens. We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance.

...The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society."

After reviewing the history of the necessity under the Fourth Amendment for a determination by a "neutral and detached magistrate" before a warrant shall issue, the Court went on to say:

"These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

...We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.

Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases.

... Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur."

After this case, came the 1978 F.I.S.A. law passed by Congress and signed into law by President Carter which allowed, after review and determination by the Attorney General, surveillance of foreign subversive activities without a court order, as long as certain conditions were met and as long as there was no "substantial likelihood" that the surveillance would involve a "United States person".

Indeed, there is no inherent executive power, as had been claimed by the Nixon Administration, to wiretap for domestic security concerns, which circumvents the Fourth Amendment. It is to say that the Executive branch of government, the President and Attorney General, have inherent powers which enable crafting of exceptions to adherence to the Bill of Rights. It is preposterous; it is why we fought the Revolution against King George. Poor Richard learned his lesson the hard way after his subordinates decided, through the former Attorney General, Mr. Mitchell, head of Mr. C.R.E.E.P. in 1972, that these inherent powers permitted the Executive, for the sake of insuring domestic security, to spy on the headquarters of the opposing political party less than five months before a presidential election.

Now what this way comes?

The Republicans are attempting to strike a "deal" whereby a Congressional sub-committee will determine what is or isn't fit for warrantless search, whether that search involves a United States citizen or not.

That is patently unconstitutional. Congress enjoys no such authority.

There is no provision for court oversight of such a program or review by the courts of alleged abuses; indeed the tapees will never even likely become aware of potential abuses as they remain secret. Thus, they haven't even the remedy, dubious though it is, of civil suit for damages for improper searches violating Constitutional rights as the Federal law permits to deter such abuses. The only deterrence under the F.I.S.A. law are the stiff criminal penalties for its abuse, for the inherent secrecy of the search permits of no other remedy practically.

But, not so, apparently, with this Republican Congress making its midnight "deal".

No, our fate, dear ones, under this "deal", is to be left in the hands of an Attorney General and a President who are so callously indifferent to existing law on the books for 28 years that they would cavalierly toss it aside, break it, then go running to their Republican entourage on the Hill to make this "deal"--a "deal" to throw out your civil liberties and have them subject to the check and balance of your friendly neighborhood partisan Congressman only, and the Executive, the President and Attorney General, excluding from the process the courts under our normal three-branch system.

Senator Specter, (R-Pa.), Chairman of the Senate Judiciary Committee, in a letter to the editor published in the New York Times March 6, 2006, has stated that he believes "that the wiretapping flatly violates the Foreign Intelligence Surveillance Act, which requires court approval," but he has "reserved judgment on whether the president has Article II inherent power, which would trump the FISA statute, because I don't know what the program is, and the administration will not tell us." [Emphasis supplied.] Senator Specter favors oversight by the established F.I.S.A. court to review such applications for surveillance--a wholly reasonable and responsible position, even if the F.I.S.A. court conducts itself in secret. Still, at least, it is an independent judicial review, maintaining the carefully struck balance of power inherent in our system of government between the three branches, with some perhaps due deference to secrecy of the judicial proceedings vis á vis this particularized realm of foreign terrorist activity.

The Constitution is not set up, as any reasonably informed schoolchild knows, to enable either the Executive or the Congress to wield any sort of power, "inherent" or otherwise, which unilaterally allows that branch, without the prospect of judicial review, to act in secret to limit or circumscribe what is and is not Constitutional. The final arbiter of what is or is not Constitutional is the Judicial branch, and should always be maintained as such or we might as well burn the document now and declare its past-mastery pastless and thus passé--mutatis mutandis, a royal fiefdom, not a democracy under laws set up and guided by the Constitution, but rather of a bunch of power-hungry, edict issuing madmen bent on power accumulation and maintenance, just as became the Nixon Administration of yore by its third year in office.

Article II of the Constitution enumerates the powers of the President thusly:

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3.

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. [Emphasis supplied.]

The first sentence of Section 1 states, "The executive power shall be vested in a President of the United States of America." This "executive power" is, logically and naturally, other than those powers specifically enumerated, related only to the last sentence of Section 3, that is the duty of the President to faithfully execute the laws, just as the final paragraph of Section 1 prescribes the oath of office: ''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

Just from whence any Senator or Congressman determines that the Executive has more power than that specifically enumerated and more inherent power than to do just that, preserve, protect and defend the Constitution and uphold the laws passed by Congress, would have to be shown to us; it is obviously a specious notion.

So, if otherwise, let them who want to propose and make this "deal" to compromise your civil liberties, to enable partisan politicians, subject to the whimsy of political vicissitudes and prejudices, fund-raising from and hell-raising by their constituents, pressures, dinners, and payoffs from Abramoffs, not the dutiful, schooled notions of law and relative insulation from politics by tenure which Federal judges enjoy, step forward now and tell you why it is that this "deal" is proper, legal, Constitutional, and anything but a complete dumping by the side of the road of our civil liberties on the convenient notion that fear of terrorism on the fast-paced highway warrants it--and explain further the inherent dangers down the road in enabling such a first abusive step in that direction with respect to our civil liberties, abusive to the entire framework of our government and its history. Let them come forth and explain these things to you.

Yet, what do they do? They couch in secrecy a "deal" to promote more secrecy to usurp our civil liberties. Barely a ripple of it is made in the news. More attention is being paid to the latest automobile chase, murder spree, or even the murder spree of last year or the year before, than this news story which ought to be occupying the airwaves most of each day for the present time to the virtual exclusion of all else save the war in Iraq.

It is an outrage--and it is an outrage which should be met in November with a thorough dumping out from office of any Congressman or Senator who votes to approve such an outrageous proposal. For such ilk are neither worthy of our respect nor our votes. They have abrogated their responsibilities, likewise maintained by their oaths of office, to uphold the Constitution and the laws of the United States, and to see that the Executive branch upholds those laws as well by virtue of the Congressional power to impeach for such abuses. The laws of the land, criminal laws, have been broken by an out of control Administration which happens to coincide with the party identity of the majority of Congress and thus obviously believes itself superior to the law and able to circumvent it and the Constitutional protections which are the heart and foundation pins of the republic and this democracy.

What the Congress ought be doing is sitting down and actively debating whether or not articles of impeachment are warranted for felonious and deliberate violations of the Federal law which strike at the very heart of our liberties, not striking in the dead of night some cooked up "deal" to let it all go in favor of more secrecy, substituting for independent judicial review, review by other popularly elected officials, the Congress, to supplement the Executive branch determination of who does and who doesn't, as United States citizens, enjoy rights under the Constitution.

How would our Republican Puritans have reacted had, say, a Democratic Congress gone to the White House in 1998 and made a "deal"--no blue dress to Ringo, if you promise to submit regularly to private sub-committee approval of all appointments held within the Oval Office, and that sub-committee was chaired by and had as its majority Democrats largely sympathetic to the President?

Oh, but we say, we haven't ever talked to Al, and so we are completely free of the prospect of this surveillance. Any citizen who talks to Al doesn't deserve the protections of the Constitution, and so... But how do you know, when all is secret, none of the surveillance procedure or product is subject even to review by a court which itself conducts itself in secret? How do you know that one has to talk to Al before one is tapped? How do you know?

Only the President, the Attorney General, and the majority of a Congressional sub-committee, all of one party, governed by partisan passions, the chair of which and the rules of which determined by majority rule, will ultimately make the determination.

When you vote in November next, remember it well: How do you know?

We also include the piece below from today's editorial page, a piece out of the New York Times, on that which was besetting the British Empire in India, the desire by natives of India for independence from empire, as laid forth in high relief by the consistent fasts, the model for passive resistance for the subsequent civil rights struggle in this country, in later turn a model for resistance to Apartheid in South Africa, of lawyer-turned-spiritual leader Mohandas K. Gandhi.

How Big Is Rajkot? Burning Question Gets An Answer

The New York Times

Just how mighty a potentate is this ruler of the State of Rajkot whom Mahatma Gandhi defeated in a 98-hour fast? The young man's name is Thakore Sahib Shri Dharmendrasinjhi. With a little squeezing it can be made to fit inside Rajkot, which is 280 square miles, or very nearly, but not quite, the area of New York City. The population of Rajkot state is 60,000.

A dispatch from Rajkot says it was Gandhi's sixth fast in behalf of good causes in India. The Mahatma has thus fasted against the British Empire with a population of 450,000,000 and he has thus fasted against Rajkot with a population of 60,000. In the latter case a much greater issue must have been at stake than the question of setting up a city council of Rajkot town, population 38,000. Very likely the whole status of the Indian princes in a federated India was involved.

India is a continent by itself with a population not far from three times that of the United States. The problem of federation is not made easier by the political diversity. It has huge provinces under English rule with a population close to fifty million, like Bengal or Madras. It has big native states like Hyderabad with fifteen million people and a ruler who is reputed to be the richest man on earth. It has native states like Rajkot with a population of 60,000.

One can go farther down than this in India. A person might be the ruler of a native state like Virampura with an area of one square mile, population of 107, and an annual revenue of 900 rupees, or $360. It is an area smaller than Central Park, a population smaller than that which will be found swinging and sliding any fine morning in one of Robert Moses' marginal playgrounds, and an annual revenue smaller than that of the man who sells popcorn to the playground population. But for the British in India and for Gandhi the state of Virampura may become a problem.

Birds of a Feather

Richard Whitney, former Stock Exchange President who turned up with a thumping shortage in his accounts, did the country a sort of favor. That is, in a time when everybody was perplexed over new questions of right and wrong which were being raised by the New Deal--questions of industrial size and power and public interest in labor relations and gentlemen in well-stocked clubs--Richard Whitney was caught in a good old-timey sin, which had been a statutory offense as far back as the Ten Commandments. And it was generally believed that thereby Wall Streeter Whitney played his crowd right into the hands of the politicians. Certainly they had little stomach for the fight after their former spokesman was carried off to prison.

Recently, however, there have been disclosures and strong intimations that the politicians are not above a little safe-cracking on their own account. And these charges have touched no one on an eminence in politics such as Whitney occupied in finance, but they have come close to some of the big boys and spattered mud on some of the political machines, which is the motive power of all politics. Call off a few of them--Federal Judge Manton, Democratic stalwart James J. Hines, the case of the magistrates in Brooklyn, the indictment of a couple of Boss Pendergast's judges in Kansas City, a second series of indictments of some of former Governor Earle's Cabinet members in Pennsylvania, this time for the fraudulent waste of $600,000 in highway funds, and others who would make a fairly pretentious rogue's gallery. And there are always the perennial and immune centers of political corruption, such as Jersey City, and others such as Massachusetts where new administrations are turning up crass frauds.

All these, of course, are no mitigation of Richard Whitney's offense. But it is time some of the politicians went to jail. It is long past time for a thorough cleaning out of politics and the emphasizing of simple honesty as the first prerequisite in public service.

Distaste for Crow

Those simple souls who have been expecting that, in his forthcoming relief message to Congress, the President would modify his insistent demands for the immediate appropriation of the $150,000,000 lopped off the original relief appropriation in January, had their hopes pretty well squelched yesterday when he made it plain that he expects to stand by his guns.

But they have no kick coming. In believing any such thing they were simply allowing the wish to father the thought. How necessary or unnecessary the appropriation may be, we don't know. But necessity has very little to do with the matter. If the President ever admitted that it might be possible to get along on less money than he originally demanded, then he would be admitting that he was in error in the first place in announcing those demands as the irreducible minimum. And it is not in the nature of most men thus publicly to eat crow. And, certainly, it has been amply demonstrated that it is not in Mr. Roosevelt's nature.

Furthermore, there are political considerations which he has to take into account. If the President ever candidly confessed such an air, does anybody suppose that the Republicans, the anti-New Deal Democrats and his haters in business circles, would content themselves by applauding the confession? Maybe a few would have such restraint, but most of them would as certainly seize on the admission with glad whoops and howls as perfect political capital. Jibes, taunts, derision--such would be his immediate portion.

And that being so, and the President being the sensitive and stubborn man he is, it was perfectly inevitable that he should never recede an inch.

They'll Be Surprised

The majority leadership in the House has a little scheme to poll fellow Democrats, find out if the Townsend Plan is sure to be swamped, call up that wraith-like bill and dutifully kill it off. The strategy behind this is twofold: (1) to show that the $200-a-month pension bill hasn't a ghost of a chance of passage and thereby to shut off the flow of dimes from old people to Townsend headquarters, and (2) to put Republicans connivers with old Doc Townsend & Co. on the spot.

It ought to be done, by all means. It is time for those in charge to put the kibosh on wild lunacies which distract the country and delude the old folks, and the General Welfare Plan ought to be disposed of along with the Townsend Plan and any other fantastic formulas which may be in circulation. But it can be done only with a certain risk.

The risk, that is, not so much of passage as of demonstrating the size and solidarity of the lunatic fringe in Congress. It is hard to believe, and it is no sort of comfort to the defenders of democratic government, but the number of Representatives who accepted the support of the panacea peddlers and who are bound to pay off by at least going on record with one favorable vote--is a whole lot larger than one likes to think. And since the attitude of the White House has been to receive these charlatans into good and regular standing for their usefulness in other endeavors, they are insured against reprisals and have nothing to lose.


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