Mandamus, Steel, Spying, Unending War on a Global Battlefield
In 1952, President Harry Truman tried to seize steel mills to prevent an labor action under what his administration claimed was an implied power to protect national security interests during the Korean War. The power was said to be generally implied from presidential power vested in the president by the Constitution and as President of the United States and Commander in Chief of the Armed Forces. Mill owners argued that the president went beyond his authority as the Constitution gives the power to make laws expressly and exclusively to the legislature.
The Supreme Court had the final word, as it shall under Marbury vs. Madison, on the issue of whether or not President Truman acted within his constitutional authority in seizing the steel mills in Youngstown Co.. v. Sawyer, 343 U.S. 579 (1952). Justice Black wrote the opinion of the court and said that the President did not have the authority as Commander in Chief of the Armed Forces because seizing private property to settle a labor dispute is not within the "theater of war". Basically, the President's powers as Commander in Chief of the Armed Forces does not make the President Commander in Chief of the entire country.
Justice Black further maintained that the President had no broad generally implied powers to seize the mills because the President is not a lawmaker, but is supposed to see that the laws are "faithfully executed".
Justice Jackson, delivered the most famous quote regarding the case in his concurring opinion wherein he stated:
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution,for what is at stake is the equilibrium established by our constitutional system.
Here is a very good summary of the steel seizure case.
In this legal context, came the case against President Nixon's domestic surveillance program. In United States v. United States District Court, 407 U.S. 297 (1972), commonly known as the Keith case, the Supreme Court ruled that warrantless surveillance of domestic organizations was unconstitutional under the Fourth Amendment and that the national security concerns do not justify "a departure from Fourth Amendment standards" requiring judicial approval. In his opinion for the Court, Justice Powell stated:
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] 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.
All this and much more was discussed Friday evening when attorney and President of the National Lawyers Guild, Michael Avery, spoke to the Illinois chapter of the National Lawyers Guild. Avery is representing lawyers for the Center for Constitutional Rights (CCR) in their suit against Bush over the domestic spying program. Avery talked about the national security state we are allowing to be created in the United States. Avery said that secrecy is the hallmark of a national security state. Bush's use of secrecy to curb free speech and freedom from search and arrest without probably cause, move us away from particularity in search and arrest that has historically prevented the government from going on fishing expeditions against people and the attempt to place limits on judicial review are fast making the US over into a national security state. Bush's concept of the War on Terror as unending war on a global battlefield is nothing more than an attempt to avoid the Supreme Court rulings in Youngstown and the Keith Case described above.
Avery pointed out that Bush and his crew are in overdrive working to end the old and venerable law created by Marbury vs. Madison giving the Supreme Court the power to interpret the Constitution over the acts of the president and the legislature. With his signing statements maintaining that he can choose to conform or not with the law at his will, Bush is saying that the president interprets the constitution, ad hoc, as and when he chooses.
Bush chose to disobey the FISA law, created by congress after the Keith case to specifically set forth the circumstances under which the executive branch may conduct warrantless searches against foreign organization because the Keith case expressly stated that it did not apply to foreign surveillance. According to Avery, he's admitted to 40 FISA violations and has had time since that admission to violate it several more times. The Fourth Amendment was controlling on domestic surveillance. So, it is clear that Bush has violated both FISA and the Constitution, continues to violate both FISA and the Constitution and flaunts the violations.
Bush has managed to get some people to agree to these violations through the use of their fear and ignorance of the law. The government's position in CCR v. Bush is that NSA spying cannot even be discussed, the case must be dismissed and the court cannot rule, because such discussion alone puts the US at risk. The Bush administration argument is that now that we have unending war on a global battlefield, what they say goes and they don't even have to actually say it.
If we accept the premise of the Bush Administration that we are in unending war on a global battlefield, we will be handing our Constitution and our Country over to Bush and giving up all of our recourse on every subject matter from the environment, to education, to taxation, to war. Avery doesn't thing we should just sit around and wait for the Democrats to come up with a better candidate. We have to demand change. One way to start is to demand your Illinois state representative join Rep. Karen A. Yarbrough and 17 of her collegues in sponsoring House Joint Resolution 125 (HJR0125) calling on the US Congress to impeach George W. Bush. For more information on how they can and why they should, go here.

















