Wampum

There is at least one modest consequence of adopting the position advocated by Richard Nixon in United States v. Nixon (1974)¹.

Nixon's Views on Presidential Power: Excerpts from an Interview with David Frost

The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.

FROST: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.

These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?

NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.

Nixon cites Lincoln, on the imposition of martial law (by way of suspension of habeas corpus), within some specific military districts, e.g., any point on or in the vicinity of the military line which is now used between the city of Philadelphia via Perryville, Annapolis City and Annapolis Junction, which is limited in geographic scope, and predicate condition, insurrection or jurisdictional authority, depending upon the perspective of the protagonists in 1861.

FROST: Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?

NIXON: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

The modest consequence that comes to mind is that we are not engaged in an academic debate on the merits of the positions offered by Attorney General Bates, Horace Binney, and many others, for the authority that Lincoln claimed, or the positions offered by Chief Justice Taney, and also many others, against the autority that Lincoln claimed. To do so we would have to discuss the particulars of the Merryman case, and others arising out of the suspensions of Habeas Corpus of April 27, 1861, September 24, 1862, and September 15, 1863.

Unfortunately, we are not. We are discussing the particulars of acts comitted more than three dozen times since October 2001, technical intercept (aka "wiretap") in violation of the 1978 Foreign Intelligence Surveillance Act -- personally authorized by the sitting Executive.

Digby errs² in describing the particulars of present acts as "totalitarian". Lincoln offered no such defense for suspensions of Habeas Corpus. The defense offered, the defense that survived the Merryman, Vallandigham and Milligan cases, was that insurrection then presently existed, and the arrested were properly charged with 1) conspiring against the government of the United States; 2) affording aid and comfort to the Rebellion against the authorities of the United States; 3) inciting an insurrection; 4) disloyal practices; 5) violation of the laws of war, etc.

Duncan errs³ in describing the present actor as proudly admitting guilt. Mr. Bush has admitted that his Regime formally takes the position that an insurrection presently exists, and that some or all of the elements of the acts charged in the cases prosecuted between 1861 and 1866 also presently exist, committed by citizens of, even members of the legislatures of, some states of the United States. Persons targeted by the three dozen plus violations of the 1978 Foreign Intelligence Surveillance Act are engaged in Rebellion.

What we do not yet know are the specifics of the present acts which meet those precedent criteria. If we discover that they are as modest as those which caused Mr. Nixon to implement the Huston Plan, and were later to be listed in the Articles of Impeachment, then we shall be in the Present Wicked Rebellion, and many, many may find themselves thereby made legally "rebels" and if we are fortunate, one which ends in Articles of Impeachment, not Articles of War.

To readers interested in technical intercept I recommend RFC 2804 IETF Policy on Wiretapping. It describes the Raven Process and the Raven mailing list. I contributed to the Raven Process and the Raven mailing list, as did many others in the IETF community. Please note that the document contains a policy statement, one which is made for purely technical reasons. In a nutshell, flow replication (tap) and covert flow management make the communications fabric inherently more fragile. We did not recommend the introduction of mechanisms which tend to make the communications fabric inherently more fragile.

NOTE WELL (as we say in the IETF): The insurrection did not consist of the acts of the 13,000 plus persons arrested during the three periods when Habeas Corpus was suspended, but with organized political opposition to the Lincoln Government, by Copperheads, Peace Democrts, and the governments of several States. Therefore the present insurrection cannot consist simply of the acts of some persons which gave rise to some three dozen violations of the FISA.

¹Bush v Gore (00-949)
^2,3I greatly value the blogs of these two individuals.

The Frost / Nixon interview transcript is taken from http://www.landmarkcases.org/nixon/nixonview.html