The Hayden Nomination: Should Government Officials Who Break the Law Be Promoted?
General Michael Hayden’s CIA nomination poses a serious question for the U.S. Senate: Should government officials who break the law be promoted or punished?
As former director of the National Security Agency (NSA), Hayden developed President Bush’s illegal program of warrantless domestic spying. He was the Program’s “principal architect,” according to The New York Times. At the NSA, Hayden failed to follow federal law and the Constitution. He demonstrated a stunning lack of judgment in administering a program he must have known was illegal—and ineffective—under pressure from the Executive Branch. This record makes him unfit to lead the CIA. By rejecting his nomination, the Senate can protect the rule of law and show zero tolerance for government officials who break the law.
We make this case in detail in a letter the Center submitted to the Senate Intelligence Committee yesterday, drawing on public information about illegal domestic spying from news accounts and several court cases. The entire letter is available here at the Center for Constitutional Rights website, but I wanted to share a few highlights below:
Hayden had to have known that the NSA Domestic Spying Program was illegal under FISA
As a career intelligence professional and former director of the NSA, Hayden understood every detail of federal law on surveillance, including the Foreign Intelligence Surveillance Act (FISA), which was passed in direct response to the post-Watergate Church Committee’s “revelations that warrantless electronic surveillance in the name of national security ha[d] been seriously abused.” Most of these abuses involved warrantless wiretapping, directed by the President without any judicial oversight to stop him from singling out his political opponents. To ensure these abuses would not be repeated by presidents after Nixon, Congress expressly provided that FISA and the domestic wiretap act (usually called “Title III”) are “the exclusive means by which electronic surveillance … may be conducted.” To underscore the point, Congress made it a felony to conduct electronic surveillance without statutory authorization.
There's just no question that Hayden must have known that intercepting electronic communications and collecting calling records without seeking court approval was illegal. The legal analysis is not a close call.
Hayden also should have known that the warrantless wiretapping of communications involving American citizens is unconstitutional under the First and Fourth Amendments
General Hayden was also intimately acquainted with the constitutional limits on wiretapping when he repeatedly violated them as head of the NSA.
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.
I added the italics to show that the Fourth Amendment really has two halves. The first half says that the people have a right to be free from unreasonable searches. Pretty straightforward. The second half (in italics) says that before a court can give executive law enforcement officers a warrant (permission to carry out a search), the officers have to show the court enough evidence to demonstrate “probable cause”—meaning, good reason to suspect that criminal activity has taken place.
Now, one could read those two sections separately, so that the requirement to show “probable cause” only applies if the cops want a warrant and the partial immunity from liability it conveys. On this reading, however, the cops have another option: they can choose to carry out searches without going to a judge beforehand, and if challenged after the fact can defend their decision to search as being “reasonable” based on what they knew before the search. There are some very smart law professors out there—Akhil Amar today, the late Telford Taylor years ago—who think the world might work better if courts read the Amendment this way. (Although both Amar and Taylor are thought of as liberals, this is a classic example of a textual “strict constructionist” reading.)
But the Supreme Court has for over a century collapsed the two halves of the Fourth Amendment into one, by holding that, with very limited exceptions, all warrantless searches are unreasonable. And most people who think about these issues for a living believe that the Supreme Court’s interpretation makes sense. (Among other things, if we tested the reasonableness of searches only after they were over, it would be very hard to reliably separate what the cops knew before the search from what they learned during the search.)
Now, let’s get back to General Hayden. In January, Hayden insisted “if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth.” However, when reporters asked him if wiretaps always required “probable cause,” he said “No, actually—the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.”
People have taken this to mean he’s a dummy (like his boss). He’s not; he’s actually being sneaky-smart. That is what the Amendment “says”—if you ignore the inconvenient fact that the Supreme Court has read it differently for a hundred years or so.
Whether this “reasonableness” standard was the original rationale for the NSA Program (torture memo coauthor John Yoo apparently wrote a wiretapping memo around the same time) or an after-the-fact justification, Hayden implemented a program in which NSA shift supervisors employ their own standards of “reasonableness” to make decisions about who to target for surveillance.
Even if the NSA’s domestic spying activities were actually approved by Congress, the NSA Program would still fail to comply with the Fourth Amendment as the Supreme Court has always read it. Interception of calls involving Americans on American soil requires a court order and a demonstration of probable cause.
Hayden should have understood that the President was violating the separation of powers when he authorized the Program
Congress was well within its constitutional authority when it passed FISA almost thirty years ago. The Executive Branch’s attempt to bypass this congressionally-approved statute and thereby avoid ever going to judges before instituting wiretaps undermines the separation of powers—the most fundamental organizing principle of our representative democracy.
As the highest-ranking intelligence officer in the armed forces, General Hayden should have been well aware of the illegality of the NSA’s domestic surveillance activities. Several other governmental officials had already suspected as much and spoken out accordingly.
Instead, it appears that General Hayden’s CIA nomination is a reward for his failure to uphold the law in the face of Executive pressure. This is especially troubling for the head of a spy agency—which operates out of view of the press, the courts, and the voting public most of the time. If we are going to tolerate the existence of such arms of government, the people who run them had better be absolutely beyond reproach ethically. Given the many indications that NSA’s electronic surveillance program and massive domestic call database gravely intruded into the separate functions of the three branches, the Center believes his confirmation should be opposed.
Thanks for reading. If you’ve gotten this far, you might want to check out the full letter we sent.
The NSA litigation: the government uses the nuclear option
Last Friday, the government filed its first motion to dismiss one of the broad challenges to the NSA surveillance program, EFF’s lawsuit against AT&T. The government asked the court for permission to enter the case—EFF had sued only the private phone company AT&T—and, as expected, the government promptly resorted to the nuclear option, basing its argument for dismissal on the state secrets privilege, which I described in a posting three weeks ago.
It its most basic terms, invocation of the state secrets privilege involves the government submitting an affidavit from a department head saying that any court proceedings would end up spilling secrets that would threaten national security, and asking the court to dismiss the suit just based on those grounds. Typically, when faced with sensitive evidence, a court may close the courtroom, place briefs under seal, and make the other side's attorneys promise not to divulge the information, or even make them seek security clearance in rare cases. The state secrets privilege says that isn’t good enough for some secrets. For the most sensitive secrets, the case must be dismissed outright. Even the judge cannot be trusted to hear them. In fact, they are so sensitive that the judge can’t even evaluate the level of confidentiality required for himself; instead, he must rely on an executive affidavit. Or so the government’s argument goes.
For the administration’s flacks, this marks an analytical jump from “the program is absolutely legal” to “we can neither confirm nor deny anything about the program.”
Citing such legal classics as In re Under Seal—a great name for a state secrets case if ever there was one—the government has argued that a lawsuit against a private company alleging that that company violated federal law (racking up millions of dollars in liability to the plaintiffs in the process) must be dismissed without a moment’s further inquiry. This despite the fact that the plaintiffs already possess documents which they claim provide all the proof they need to win the case.
This wasn’t the only government attempt to cover its tracks filed last Friday. In another NSA Program challenge in Oregon, the government again resorted to an ex parte filing—that is, it submitted a brief for the judge’s eyes only, not to be seen (or responded to) by the other side’s lawyers. The case alleges that the NSA spied on domestic communications between a Muslim charity in Oregon and its lawyers in Washington, DC. This is a shocking claim: that not only is the NSA involved in warrantless domestic surveillance (something the administration has managed to deny until this weeks’ revelations concerning calling records), but it is not even confining itself by the usual constitutional rules prohibiting eavesdropping on privileged communications between attorneys and clients. The plaintiffs imply they have proof of all this in the form of a document accidentally released by the government in the course of earlier proceedings whereby the charity was designated as a terrorist organization by the Treasury Department. That document was filed under seal by the plaintiffs, and the government desperately wants to keep it hidden from public view.
Where was this secret brief filed? In some safe room in the federal courthouse? You’d think so, but it wasn’t filed with the court. Rather, the brief and its classified exhibits are “currently stored in a proper secure location by the Department of Justice and are available for review by the Court upon request.” The “by request” portion of that sentence is quite remarkable. Let me explain why by analogy: Even with the advent of electronic filing systems (where briefs and other papers are all filed on disk or via the web), courts have been reluctant to accept briefs containing internet hyperlinks, in part because they worry that if a judge (or his clerks) click on a link in a brief, that may tip off one of the parties to what the judge is looking at, working on, or thinking about, or may tip people outside the courthouse off to the fact that a decision is close at hand. The government’s insistence that the judge in the Oregon case ask permission to visit the secret brief in its secure home and read it is similar in some ways: it effectively allows the DOJ attorneys in Washington to follow the judge’s reading habits. As if he couldn’t be trusted to drop in on his own. Amazing.
The government has apparently threatened to invoke the state secrets privilege in that case if plaintiffs do not self-limit their discovery (pretrial document) requests. Thusfar it’s only a threat. But that’s basically how any privilege works—like insurance, it gives the person covered an extra incentive to misbehave. Why respond in good faith to legitimate discovery requests when you have the nuclear option and the other side doesn’t?
The government has managed to successfully assert the state secrets privilege in several cases recently. One of them involved Sibel Edmonds, a Turkish translator hired by the FBI who was appalled at what she saw inside the agency’s translation section and complained to her superiors. Like many whistleblowers before her, she was fired. She brought suit, and the government successfully argued (before a host of conservative trial and appeals judges—the latter barred her from the courtroom during the argument of the appeal) that the state secrets privilege was an absolute bar to her suit going forward. The Supreme Court declined to review the case.
What was it she was trying to tell her supervisors that got her fired? Among other things: that a translator sent to Guantánamo to translate Farsi detainee interviews didn’t speak that language, and that foreign diplomats suspected of spying in the U.S. were having their wiretaps translated by their own relatives who worked for the FBI. Rather than let those serious national security breaches see the light of day (and perhaps become subjects of an embarrassing outside investigation), the FBI fired her, and then successfully managed to deprive her of her vindication in court, courtesy of the state secrets privilege.
The Edmonds case reveals the rot at the heart of the government’s “war on terror”—that the legal shortcuts the administration has used, by removing oversight, ended up weakening law enforcement’s efforts against terrorism by diminishing accountability. (No surprise, then, that most of these shortcuts were dreamt up by ivory-tower right-wing academic lawyers such as John Yoo with no experience in law enforcement.) The same applies to the massive detention sweeps that have alienated immigrant communities—law enforcement’s most valuable ally, its eyes and ears on the street—from the federal authorities, and to the warrantless and most likely suspicionless surveillance carried out by the NSA—which the Times and Post exposed as being vast sinkholes of effort for the agents forced to follow the NSA’s dead leads.
Law professors, I preempt thee: how about de-federalizing immigration law? Pass federal legislation devloving it to the states, as they do in Canada (at least for Quebec) and deal with the race-to-the-bottom fear by restricting movement of people admitted under state law across state borders. You could give each state X number of visas/year to play with; maybe make it proportional to existing population, maybe not. New York and California will get the educated folks in short supply here at home; Maine and places like it can escape the French low-population-growth trap and get a real economy again; Alabama can continue "the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state."
Below, the entire text of Wilkes v. Wood, 98 Eng. Rep. 489 (C.B. 1763), currently unavailable anywhere else on the web or LEXIS as far as I can tell. Reproduce freely with attribution. "Wilkes and Liberty!"--SK
REPORTS of CASES ADJUDGED in the COURT of KING'S BENCH, from Easter Term, 12 GEO, III. to Michaelmas, 14 GEO. III. (both inclusive). With Some SELECT CASES in the COURT of
CHANCERY, and of the COMMON PLEAS, which are within the same Period. To which is added, the CASE of GENERAL WARRANTS. By CAPEL LOFFT, Esquire, of Lincoln's Inn. 1790.
 Michaelmas Term, 3 Geo. 3, 1763, C. B.
NOTE.-This case was not taken by myself, but communicated by the favour of a gentleman to whom I am much obliged, and whose permission I have to publish it.
John Wilkes, Esq. against Wood.
The Case of General Warrants. Middlesex to wit, 6th of December 1763.
At the Court of Common Pleas, at Westminster. Sittings after Michaelmas term, before Lord Chief Justice Pratt, John Wilkes, Esq; plaintiff; Robert Wood Esq; defendant.
In an action of trespass, for entering the plaintiff's house, breaking his locks, and seizing his papers, &c.
The plaintiff's counsel were—
Serjeant Glyn, Mr. Recorder Eyre, Mr. Stow, Mr. Wallace, Mr. Dunning, Mr. Gardiner.
Attorney for the plaintiff, Mr. Philips of Cecil-Street.
For the defendant—
Philip Cartaret Webb, Esq; Solicitor to the Treasury, and Mr. Secondary Barnes.
 The special jury—
Plukenet Wood Roffe, Esq; of Chiswick; William Baker, Esq; of Isleworth; William Clark, Esq; of Edmonton; James Gould, Esq; of Edmonton; Stephen Pitt, Esq; of Kensington; Nathaniel Turner, Esq; of Hampstead; Jonathan Richardson, Esq; of Queen-Square; John Weston, Esq; of Hatton-Garden; Harry Blunt, Esq; of Hatton-Garden; Henry Bostock, Esq; of Hatton-Garden; John Boldero, E8q; of Hatton-Garden; John Egerton, Esq; of St. John’s-Street.
Mr. Gardener opened the case, with declaring the foundation, that on the 30th of April last, Mr. Wood, with several of the King's messengers, and a constable, entered Mr. Wilkes's house; that Mr. Wood was aiding and assisting to the messengers, and gave directions concerning breaking open Mr. Wilkes's locks, and seizing his papers, &c. for which Mr. Wilkes laid his damages at five thousand pounds.
Serjeant Glynn, then enlarged fully, on the particular circumstances of the case, but remarked that the case extended far beyond Mr. Wilkes personally, that it touched the liberty of every subject of this country, and if found to be legal, would shake that most precious inheritance of Englishmen. In vain has our house been declared, by the law, our asylum and defence, if it is capable of being entered, upon any frivolous or no pretence at all, by a Secretary of State. Mr. Wilkes, unconvicted of any offence, has undergone the punishment. That of all offences that of a seizure of papers was the least capable of reparation; that, for other offences, an acknowledgement might make amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made. That the law never admits of a general search-warrant. That in France, or Spain, even in the Inquisition itself, they never delegate all infinite power to search, and that no magistrate is capable of delegating any such power. That some papers, quite innocent in themselves, might, by the slightest alteration, be converted to criminal action. Mr. Wilkes, as a member of Parliament, demanded the more caution to be used, with regard to the seizure of his papers, as it might have been naturally supposed, that one of the legislative body might have papers of a national concern, not proper to be exposed to every eye. When we consider the persons concerned in this affair, it ceases to be an outrage to Mr. Wilkes personally, it is an outrage to the constitution itself. That Mr. Wood had talked highly of the power of a Secretary of State; but he hoped by the verdict he would he brought to think more meanly of it. That if the warrants were once found to be legal, it would fling our liberties into a very unequal ballance. That the constitution of our country had been so fatally wounded,  that it called aloud for the redress of a jury of Englishmen. That their resentment against such proceedings was to be expressed by large and exemplary damages; that trifling damages would put no stop at all to such proceedings: which would plainly appear, when they would consider the persons concerned in the present prosecution, persons, who by their duty and office should have been the protectors of the constitution, instead of the violators of it.
Mr. Eyre, the Recorder of Loudon, then stood up: he apologized to the Bench for appearing in the present cause, considering the office be bore, but that he thought it was a cause which affected the liberty of every individual.
The Lord Chief Justice desired he would make no apology. He then observed, that the present cause chiefly turned upon the general question, whether a Secretary of State has. a power to force persons houses, break open their locks, seize their papers, &c. upon a bare suspicion of a libel by a general warrant, without name of the person charged, A strange question, to be agitated in these days, when the constitution is so well fixed, when we have a prince upon the throne, whose virtues are so great and amiable, and whose regard for the subject is such, that he must frown at every incroachment upon their liberty. Nothing can be more unjust in itself, than that the proof of a man's guilt shall be extracted from his own bosom. No legal authority, in the present case, to justify the action. No precedents, no legal determinations, not an Act of Parliament itself, is sufficient to warrant any proceeding contrary to the spirit of the constitution.
Secretary Williamson, in Charles the Second’s time, for backing an illegal warrant, was sent to the Tower by the House of Commons. The jury, he observed, had no such power to commit; he knew it well; but, for his part, he wished they had, as he was persuaded they would exercise it, in the present case, as it ought to be.
On the famous certificate in Queen Elizabeth's time, how far a man might be detained by a warrant of a Privy Counsellor, the answer of the Judges, even in those days, confined it to high treason only, and the power to arrest to be derived from the personal command of the King, or a Privy Counsellor. He then congratulated the jury, that they had now in their power the present cause, which had been by so much art and chicanery so long postponed. Seventy years had now elapsed, since the Revolution, without any occasion to enquire into this power of the Secretary of State, and he made no doubt but the jury would effectually prevent the question from being ever revived again. He therefore recommends it to them to embrace this opportunity (least another should not offer, in baste) of instructing those great  officers in their duty, and that they (the jury) would now erect a great sea mark, by which our State pilots might avoid, for the future, those rocks upon which they now lay shipwrecked.
N.B. The Recorder shone extremely.
The first witness on the prosecution was Matthew Brown.—Says, that he is butler to Mr. Wilkes. That on the thirtieth of April last, about nine o'clock in the morning, Watson, Blackmore, Mony, and Man, King's messengers, and Chisholm, a constable, came to Mr. Wilkes's house. That Watson followed Mr. Wilkes into the house, and Mony came next; Blackmore and Man followed after. That this witness never heard them, or either of them, declare their business, or the purpose of their coming. That as soon as Mr. Wilkes was carried away, which was about , Mr. Wood and Mr. Stanhope came: that Mr. Wood asked Mr. Watson, “Have you locked up all the rooms where Mr. Wilkes's papers are?” He answered “Yes; I have got the key of the study.” That Mr. Wood and Mr. Stanhope then went into the parlour; the messengers continued waiting in the passage. That soon after Mr. Webb knocked at the door; upon it's being opened this witness attempted to stop him, but he rushed in. That Mr. Wood staid that time about half an hour; that when he went away he gave orders to the messengers, that no one should come in or go out till he returned, but bade them lock up all the doors. That he came back again in about an hour. That in the mean time several of Mr. Wilkes's friends came, viz. Humphry Cotes, Gardiner, Philips, Hopkins, &c. and were denied admittance by the constable: that Watson, the messenger, upon being called upon by these gentlemen to produce his orders for refusing them admittance, said be had only a verbal order from Mr. Wood. That the messengers, however, did at last permit the gentlemen to come in.
That soon after LordTemple came; that in a short time after Mr. Wood returned, and appeared to be very angry that the gentlemen had been admitted, "Who let these men in?" That the messengers answered, “They would come in.” Mr. Wood then asked, “Who would come in?” Mr. Gardiner answered, “’Twas I, sir."
That soon after that Mr. Wilkes's friends went away; that Mr. Wood then called for a candle, which was brought him, and he and Mr. Stanhope then went up stairs, with Mony and Blackmore, the messengers, who appeared to take their orders from Mr. Wood and Mr. Stanhope. That they rummaged all the papers together they could find, in and about the room; that they (the messengers) fetched a sack, and filled it with the papers. That Blackmore then went down stairs, and fetched a smith to open the locks. That Mann, a. messenger, then came, and would whisper Mr. Wood,  who bade him speak out; he then said be brought orders from Lord Hallifax to seize all manuscripts. That the smith then came, and, by the direction of Blackmore, the messenger, opened four locks of the lower drawers of a bureau; that they took out all the papers in those drawers and a pocket-book of Mr. Wilkes's, and put them all into the sack together, and then sealed up the sack. That this witness was present during all this time; that the messengers were obedient, and paid an entire regard to the directions of Mr. Wood and Mr. Stanhope. That when Mr. Wood went away it was near two o'clock in the afternoon; that Mr. Wood, upon the whole, might be near two hours and an half in Mr. Wilkes's house. That 110 kind of inventory was made of the papers which were put into the sack. That Mr. Stanhope appeared all along to be favourable, and frequently bade the messengers be cautious and careful.
Upon his being cross-examined, he said,
That Mr. Wilkes was carried away about .
That Mr. Wilkes went out in the morning about six, and returned borne about .
That Mr. Hopkins had been there that morning before.
That Mr. Wood did absolutely and positively (this witness avers it) order, upon his going out, that all the doors should be locked up, particularly the street door: that Mr. 'Wood told the messengers they knew their orders, and bade them execute them. That be remembers Mr. Stanhope bid them be careful in rummaging, hut don't recollect Mr. Wood said so. That Chisholm, the constable, held the sack, whilst the messengers filled it with papers.
That Mr. Wood was not there when the locks were opened: he now says, that Mr. Wood had before declared that the locks must be opened.
That Mr. Stanhope said, to be sure, the locks must be opened. That Mr. Wood, he now says, was at one time above an hour in Mr. Wilkes's study.
That Mr. Stanhope was there with Mr. Wood at the time the papers were carried away.
That Mr. Webb was gone away some time before.
Richard Schofield says, that he is a livery servant to Mr. Wilkes: that be let Mr. Wood in at the door on the 30th of April, about in the morning, as he thinks.  to the best of his remembrance; that Mr. Wood staid the first time about a quarter of an hour. He confirms in general the last witness.
That Wood went away, and returned in about an hour.
That; the messenger, upon being asked by Mr. Gardiner for his orders, said he had only verbal ones, from Mr. Wood.
That be can give no account of what passed up stairs. as he remained all that time in the passage below.
He confirms the last witness on that circumstance of the messenger, Mann’s, coming from Lord Hallifax, with fresh orders.
That a post-letter came, in the mean time, directed to Mr. Wilkes, which the messenger, Watson, received, and would not deliver till Mr. Wood returned, who immediately delivered it, unopened, into this witness's hands.
That Mr. Wood, when he went away, ordered the doors to be kept fast looked, particularly the street door.
That Blackmore came down stairs, and asked this witness where Mr. Wilkes’ smith lived, and he answered him be believed in Cheapside.
Upon his being cross-examined, he said,
That Mr. Wood came about a quarter of an hour after Mr. Wilkes was carried away to Lord Hallifax,
That Mr. Wood, Mr. Stanhope, the four messengers, with the constable, together with another gentleman, whom he did not know, were the persons who came into the house.
Humphry Cotes says, that he was at Mr. Wilkes's the 30th of April last, in the morning, about , being sent for by Mr. Wilkes,
That Mr. Wood came in between twelve and one: that he (this witness) had been down to the Court of Common Pleas, to apply for a habeas corpus, and, upon his return to Mr. Wilkes's house, was told that Mr. .Wilkes was not at home, and that he, Cotes, must not come in; this was between twelve and one o'clock. He demanded the reason why be must not come in, and by whose authority the door was locked. The man at the door answered, by the Secretary of State's.
 The Solicitor-General disputed this evidence, as Mr. Cotes did not declare the man's name.
But Cotes then said, that the door-keeper called Watson, the messenger, to him; who said be had the secretary’s verbal order only, but not a written one.
That this witness did then insist upon being admitted, and did accordingly enter the house.
That Mr. Wood presently after came in, and said, with anger, "What do these men do here?”
That this witness then said, “What business have you here, Sir?" Mr. Wood answered, that be was the Secretary of State's secretary.
That this witness then said, he had nothing to do with the Secretary of State, nor his secretary neither; that his name was Humphry Cotes, and was to be spoken with at any time.
That he (this witness) staid at Mr. Wilkes’s house till past .
That he was desired by Mr. Wood to be present when Mr. Wilkes's papers were sealed up, which he refused to do.
The Solicitor-General did not cross-examine him.
Richard Hopkins, Esq; says, that he went to Mr. Wilkes on the 30th of April last, at half an hour past nine o'clock in the mowing, and staid two hours; found then no kind of obstruction.
That Mr. Wood was not there at this time, as this witness verily believes; but that when he returned, Mr. Wood had been there,
Confirms the last witness’s account, of the obstructions to his entring the house, at this his last coming. That be was desired to be present at the sealing up Mr. Wilkes's papers, which he declined doing.
Arthur Beardmore says, that he was in Westminster-Hall on the 30th of April last and, hearing of Mr. Wilkes’s arrest, he went directly to his house, and, with some difficulty, gained admittance. That when he gained admittance, and came into the parlour, Mr. Wood was there, altercating with the last witness, Mr. Hopkins.
 That Mr. Gardiner and Mr. Cotes were then there. That LordTemple was likewise there.
That he (this witness) observing much confusion, demanded of Mr. Wood to shew his authority, and that much wrangling then ensued. That Mr. Wood and Mr. Webb were both there at this time, That Mr. Wood in treated the company to believe, that the secretaries had acted entirely pursuant to the advice and direction of the Attorney and Solicitor Generals; to which this witness answered, that he very much doubted it.
That this witness, coming into the parlour again through the passage, saw Mr. Webb standing at the foot of the stairs, with some keys in his band, which this witness did presume, and verily did believe, to be some of Mr. Wilkes's keys to his private escrutoires and drawers.
That Mr. Wood did desire him (this witness) to be present at the sealing up Mr. Wilkes's papers, which he utterly refused to do.
The council for the prosecution declined examining Mr. Gardiner and Mr. Philips, (who had both been present) on account of their being employed in the cause; and therefore rest here.
The Solicitor-General then stood up to make the defence which he divided into two parts; and first, he maintained the plea of not guilty; but if the jury should be of opinion that would not stand good, and that the evidence he should bring would not be capable of setting aside the evidence already produced in the Court on the other side; be then, secondly, relied on the special justification. He was at a loss, he said, to understand what Mr. Wilkes meant by bringing an action against Mr. Wood, as he was neither the issuer of the warrant, nor the executioner of it. If the constitution had been in such an egregious manner attacked, why not bring the Secretaries of State, themselves, into Court? Why should Mr. Wilkes commence separate actions against each person? Is Mr. Wilkes, at any event, entitled to tenfold damages? This was the first time be ever knew a private action represented as the cause of all the good people of England. If the constitution has, in any instance, been violated, the Crown must be the prosecutor, as it is in all criminal cases. The constitution does not consist in anyone particular part of the law; the whole law is the constitution of the country, and a breach in one part of the law is as much a violation of the constitution as of another. Though so much has been said on the other side, with regard to the injury that might result from the promulgation of secrets, no proof had been brought of any thing being  promulgated that was not proper to be so. The arguments which had been used against seizing of papers, to procure proof, were felo de se, unless the major was denied to include the minor. He then went upon the argument touching the warrant, and observed that these warrants had been issued as far back as the Courts of Justice could lead them. That the late Act of Parliament of George the Second for taking up vagrants was a general search-warrant, and he never knew it was ever esteemed an infringement of our constitution. That these warrants had existed before, at, and since the Revolution, and had been till this case unimpeached; that if so contradictory to the constitution of this country, they could never have remained to this time.
He then made a general observation to the jury, that it was their duty to hear the cause coolly and dispassionately, without any bias to one side or the other. He then went on to make remarks on the evidence which had been given by the plaintiff; remarked that the question of liberty had nothing to do with the present cause, which only respected the seizure of papers, That the messengers went bunglingly about their business; Mr. Wood was only sent to see they did their duty.
He then went on to make remarks on The North Briton, No. 45. That it was a libel on the three branches of the legislative body, King, Lords, and Commons; that it was a libel of such a nature, that when it was before the two Houses of Parliament not one single person, in either House, ever uttered one single word in defence of it. That the whole of The North Britons were of such So nature, that it astonished most considerate persons how they should have passed so long unnoticed; that it had attacked private persons, persons in public stations, with their names written at full length; which had already produced bloodshed, in an instance which they all well knew: and what farther fatal consequences might result from those publications, who would be answerable! If Mr. Wilkes should be proved to be the author of these papers, and of that libel of libels, No. 45, (an equal to which be defied this or any other age to [*494] produce) if he should be proved to be the author of that paper, which he was confident he should be able to prove, to the full satisfaction of the Court and jury; in that case, so far from thinking him worthy of exemplary damages, he was certain they would view him in his true and native colours, as a most vile and wicked incendiary, and a sower of dissention amongst His Majesty's subjects, He then observed, that the freedom of this country consists, that there is no man so high, that he is out of the reach of the law, nor any man so low, that be is beneath the protection of it.
That the warrant was legal in itself. That the authority of a Secretary of State was sufficiently established. That  damages should always be reckoned according to the injury received. A jury that ever acted on any other principles certainly forswore themselves.
Lord Hallifax then came into Court, and being sworn, said, that he did receive information concerning No. 45.
That he did issue warrants in consequence of such information. That he did desire Mr. Weston, his secretary, to go to Mr. Wilkes's, and see that the messengers did their duty; that Mr. Weston declined it, beseeching his Lordship to excuse him, on account of his weak nerves, and ill state of health; that he then did desire Mr. Wood to go, who accordingly went. That he had reason to believe that Mr. Wilkes was the author of No. 45.
That he had information previous to the apprehending Mr. Wilkes, and his Lordship believes, to the best of his remembrance, it was on the very day the warrant was put in execution.
That this information tended to prove Mr. Wilkes the author of No. 45; but he cannot pretend to charge his memory with the entire contents of the information.
That orders were given by his lordship to the messengers, but he declares that he cannot, at this time, pretend to recollect either their names or their persons. That there orders were given by his lordship previous to the apprehension of Mr. Wilkes.
Upon the Lord Chief Justice expressing a desire to be informed by his lordship concerning the nature of the information said to be received at his office, and about which his lordship appeared rather shy, and cautious of entering upon, the Solicitor-General then produced an affidavit of Walter Balff, a printer in the Old Bailey, which was read, in order to prove Mr. Wilkes the author of No. 45.
[I cannot recollect the whole of this affidavit, but it had in general a tendency to prove Wilkes the author and this Balff the printer of No. 45.]
Upon Lord Hallifax’s being cross-examined, he said, that Mr. Weston is his own secretary, and that Mr. Wood was Lord Egremont's secretary.
His lordship was asked, whether he should think himself then authorized to command the secretary of Lord Egremont to do any thing. After some hesitation, his lordship answered, not without consulting Lord Egremont.
 Said, that the offices are carried on in separate departments, but form only one complete secretary's office. He owns, however, that each secretary has the entire choosing and appointing his own officers,
That the warrant for the apprehension of Mr. Wilkes was issued (as he calls it, which, being explained, signifies made out) on the 26th of April last, and the information he now fixes to have been received on the 29th of April. and the arresting Wilkes's person the 30th day of April.
N.B. His lordship here fairly acknowledges that he issued the warrant three whole days before he received any information at all; and that during these three days the warrant lay dormant, whilst they were upon the hunt for intelligence.
The King's speech at the close of the last sessions of Parliament was then read. The North Briton, No. 45, was afterwards read.
Some strictures of the Solicitor-General then ensued, upon the heinousness of the author's crime.
Thomas Caddell says, that he is apprentice to Andrew Millar, a bookseller in the Strand; that; he is nearly out of his apprenticeship. That Mr. Wilkes called there in the summer of 1762. and left word with him, (this witness) that his master should advertise a new paper, shortly to come out, entitled The North Briton, and to be published by him (Millar). That his master did, in consequence, advertise it, and was paid by Mr. Wilkes the sum of one pound eight shillings, for advertisements.
[N.B. The receipt was produced in Court.]
That his master did afterwards, upon considering the affair, decline publishing The North Briton; saying he would publish no political matters,
Serjeant Glynn then objected to their going into the evidence, to prove Mr. Wilkes the author of other papers, which had no respect to the paper in questions; but
The Lord Chief Justice allowed it to be a good corroborating chain: but observed, if they failed in the last link, the whole would fall to the ground.
 William Johnston says, that be is a bookseller in Ludgate-Street. That Mr. Wilkes applied to him to publish The North Briton, previous to its appearing: that Mr. Wilkes did explain to him the general design; that he said he must have a publisher who would not stand in fear of the censures of justice.
That he never met Mr. Wilkes any where on this account; but that Mr. Wilkes always came to him.
That he, (this witness) upon consideration of this matter, declined publishing The North Briton.
That Mr. Wilkes then desired him to recommend a publisher: that he recommended Mr. Kearsly to him.
That he (this witness) had a correspondence with Mr. Wilkes, concerning The North Britons, and revising them for the press; but. that, after three or four numbers of the paper were published, he (this witness) did, upon considering the affair, decline that also.
Jonathan Scott says, that he knows Mr. Wilkes's hand-writing, and proves a number of letters shewn him to be Mr. Wilkes's hand-writing, viz.
No. 1, dated Westminster,26 July 1762.
2, ditto, 29.
3, ditto,8 August.
6, Great George-Street,7 October.
9,Great George-Street,Friday morning.
10, ditto, 27 November.
11, ditto, 12 December.
All these were read; they are to Kearsly, and relate to North Britons, then sent to be published.
[N.B. Between twenty and thirty letters were produced, but these only were read.]
Walter Balff says, in the first place, that he is under a recognizance, and therefore prays be may be excused from answering any question which may tend to affect or injure himself.
 A debate ensued for near an hour, whether he may or may not be allowed the privilege.
The Solicitor-General very strenuously asserts, that in the present case he may not be allowed it.
Serjeant Glynn, and the Recorder, reply to him.
The Lord Chief Justice gives it as his opinion, that the man is not bound to answer to any matter which may tend to accuse himself. [*]
Balff, then says, that he is a printer in the Old Bailey, and that he knows Mr. Wilkes.
Question.—Did you receive this letter? One being shewn to him. Answer.—Yes.
A letter of the 22d of April was then read of Mr. Wilkes to Walter Balff, which, from the purport of it, has a strong tendency to prove Wilkes the author of No. 45.
This letter of Wilkes refers to an inclosed paper (which paper does not appear) which he directs Balff to bring in, in the form of a letter, betwixt the conclusion of the next North Briton, and his proposals.
This letter likewise directs Balff to print The North Briton spoken of, in the compass of two sheets.
Charles Shaw says, that he is an apprentice to Walter Balff the last witness.
That The North Briton, No, 45, was printed at his master's house. That he knows Mr. Wilkes, and has seen him often at his master’s house, but that he does not know the business upon which he came there.
George Kearsley sworn, but not suffered to he examined, being under a prosecution at this time.
Michael Curry says, that he is a journeyman printer, that he was employed by Mr. Wilkes to work at the press in Great George-Street; that Mr. Wilkes gave them the whole set of The North Britons to be printed, and called them at that time his North Britons.
 The counsel for the prosecution objected to this last being a proper evidence at all to the questions; as Mr. Wilkes or any other person's republishing a work, against which there was no judicial determination, could never affect them, as the original author and publisher of it.
They then went into the legality of the warrant, and many precedents of the same kinds of warrants were produced in Court, to prove such warrants the constant uninterrupted course of the secretaries office from the Revolution.
The warrants from Lord Hallifax, for apprehending the authors, printers and publishers of The North Briton No. 45, were likewise read.
Loveill Stanhope, Esq; says that he came to Mr. Wilkes's house immediately after he was carried away to Lord Hallifax’s; that he went with Mr. Wood, and stayed there half an hour; that he was there but once, and stayed till the papers were sealed up; that he never went out of the study; that Mr. Wood was in the study but part of the time, and did nothing at all but observe what past; that he (Mr. Wood,) gave no orders to break locks by all kind of means, nor gave the messengers any orders or directions at all, but only bade them do their duty, and use civility!
That Mr. Wood was not in the room when the smith was sent for, nor gave any orders for that purpose, as Mr. Stanhope observed; that Mr. Wood was not present when the locks were opened.
But that it was Blackmore, the messenger, who broke open the locks, (in this circumstance Mr. Stanhope exactly confirms Matthew Brown's evidence).
That Mr. Wood went to Mr. Wilkes, merely at the instance of Lord Hallifax, in order to inforce a due and proper obedience to, and execution of, the warrant, and to prevent the messengers from committing any blunders.
That a debate arising, whether a table with a locked drawer should be removed entire or be opened, Mr. Mann was sent to Lord Hal1ifax for directions, and brought word that the drawers must be opened.
Upon his being cross examined, said that the messengers were to take manuscript papers only, and not meddle with improper matters, such as printed books, papers, &c. That he did think it incumbent upon him (this witness) to see that all the proper papers should be removed.
 Robert Chisholm says that he was the constable called upon to attend the messengers to Mr. Wilkes; that it was on the 30th of April last, at six o'clock in the morning, that he was called upon; that Mr. Wood came immediately after Mr. Wilkes was carried away; that he (this witness) heard Mr. Wood give no kind of orders at all; in short, that his opinion is, Mr. Wood only came to take care that the messengers did nothing that was wrong or improper.
Mr. Dunning asked this witness, whether he then imagined, that Mr. Wood appeared there merely on behalf of Mr. Wilkes, as his friend—he answered not so neither.
This witness shuffled and prevaricated very much, and contradicted his own evidence more than once.
Philip Carteret Webb, Esq; says that Mr. Wood was sent by the secretaries, merely to see that the messengers executed their warrants in due form and order; that he (this witness) was only once at Mr. Wilkes's, and then not more than half an hour; that he went because the Secretary of State was uneasy, and anxious to know what was doing at Mr. Wilkes’s; that he (this witness) was never up stairs at Mr. Wilkes’s; that he had a conversation with Lord Temple in the parlour. That he denies he had ever any keys of Mr. Wilkes in his hands; that he verily believes he had no keys at all in his hands; but that if he had any, they were his own and not Mr. Wilkes’s.
Upon being cross-examined by Mr. Dunning, Philip Carteret Webb then said, that upon recollection he was absolutely certain, that he had. no keys at that time in his hands.
That Mr. Weston was desired by Lord Hallifax to go, but that he excused himself on account of his weak nerves, and ill state of health, and that upon his (Mr. Weston) declining it Mr. Wood was desired by my lord to go, which he accordingly did.
Richard Watson says be is a King's messenger, that be was at Mr. Wilkes's on the 30th of April last, that Mr. Wood was there and did nothing at all as this witness observed, but only gave them directions how to act.
The Solicitor-General observed, when Balff and Kearsley’s evidence were set aside, that he placed little dependence on their evidence, as to the proof of Mr. Wilkes being the author of No. 45, and indeed he said it was not very material, for that the letter from Mr. Wilkes to Balff the printer which had been read, see page 26, and which be then held in his hand, was conclusive evidence against  him. Norton expatiated long upon the circumstance of this letter: he observed that it was a lucky circumstance for them that No. 45 was the only number of The North Briton which was printed on two sheets of paper, that it was the only number that had a letter at the end of it, with the proposals following. He enlarged very fully on all these corresponding circumstances.
Lord Chief Justice Pratt asked for the letter which was enclosed, that he might compare it with the letter at the end of The North Briton, No. 45.
But the Solicitor-General answered, he had it not.
Serjeant Glynn in his reply observed, that the manner of defence that had been set up would necessarily make his reply longer than it otherwise would have been. What he had to remark he should divide under two heads, 1st, as to the defence which had been set up of not guilty; and 2dly, make observations on the special justification that had been pleaded.
The evidence proved, uncontroverted, that Mr. Wood was the prime actor in the whole affair. He then observed that the three witnesses on the side of the defendant gave different evidences of the business Mr. Wood came about: Mr. Philip Carteret Webb's account was quite inconsistent: was it possible to suppose that a man of Mr. Wood’s character and known abilities should be sent only with a message that any menial servant could have delivered as well; and that he should have nothing else to do with the affair. He then observed that all the witnesses called to oppose the evidence of their side were all parties, and against whom prosecutions of a like nature were at present depending. He then went upon the point of justification, and observed, that as to Mr. Wilkes being the author of No. 45, they had totally failed in any kind of proof whatsoever; or if they had produced the appearance of a proof, it was quite aside to the present question, and to which he should not at any event have made any reply, as there was at present depending a prosecution, as to that particular point, in his defence of which he made no doubt he should be able fully to prove, that Mr. Wilkes was not the author.—That Mr. Wilkes could not be supposed or even suspected of any design against the present establishment; that be was educated in and had always adopted Whig principles; that he was known to be attached to and to have the highest opinion of the present prince on the throne, which he had often and upon many occasions declared; and his conduct had always been answerable to these declarations. When crimes have been exaggerated, and so much declamation made use of as there bas been on the present occasion, one would naturally have expected that some proof would have followed; but that in reality could never have been the case, as the sole  design was to blacken Mr. Wilkes’s character, without any foundation in fact. He then observed that various hands were commonly employed in most periodical works; that Mr. Wilkes was not denied to be the author, of some of The North Britons; but that it was not likely he was the author of No. 45, and that indeed the republication of the work ill volumes, in which was No. 45, so far from being a presumption against him, certainly affords the strongest reason to think be was not the author; for if he had been so. it is not likely he would have been concerned in a publication, whilst a criminal process was depending. He then observed as to the warrant, that it was destitute of those things necessary to make it legal: that a previous information was always necessary. That the defendants had nothing to entitle them to a verdict; that the evidence they had set up was perfectly declamatory and unfair: possibly Mr. Solicitor-General's office, might demand from [*498] him what he had said; but that he was well satisfied, from that gentleman's known good character and great abilities, that he would have refused to plead in a cause of a similar nature, which he was not forced to do ex officio. He was satisfied the jury would not view Mr. Wilkes as not entitled to a verdict, because loaded with calumny: that the case was a wound given to the constitution, and demanded damages accordingly: that Mr. Wilkes’s papers had undergone the inspection of very improper persons to examine his private concerns, and called for an increase of damages on that score. The evidence brought of precedents of these kind of warrants only shew how easy things may creep into our constitution, subversive of its very foundatiol1. He then closed with telling the jury he made no doubt, but they would find a verdict for the plaintiff, with large and exemplary damages.
The Lord Chief Justice then summoned up the evidence of the whole, and observed it was an action of trespass, to which the defendant had pleaded first not guilty, and then a special justification. He then went through the particulars relating to the justification, the King's speech, the libel No, 45.
Information given, that such a libel was published,
Lord Hallifax granting a warrant; messengers entering Mr. Wilkes's house; Mr. Wood directed to go thither only with a message, and remaining altogether inactive in the affair.
If the jury should be of opinion, that every step was properly taken as represented in the justification, and should esteem it fully proved, they must find a verdict for the defendant. But if on the other hand they should view Mr. Wood as a party in the affair, they must find a verdict for the plaintiff with damages, This was a general direction  his Lordship gave the jury, and be then went into the particulars of the evidence. The chief part of the justification, he observed, consisted in proving Mr. Wilkes the author, and the evidence given, together with the letters to Kearsley plainly shew, that Mr. Wilkes was generally so. Then as to No. 45, the evidence was of two sorts, first a letter to fix it upon him, and the other general; as to the proof of the republication of The North Britons given by Currie, supposing it of itself sufficient, of which there was a doubt, it did not extend to the present case, to justify a warrant issued several weeks previous to that period. As to the letter, the gentlemen must take that out with them, together with The North Briton, No. 45, and allow all the weight to the circumstance they think it will admit of.
If upon the whole they should esteem Mr. Wilkes to be the author and publisher, the justification would be fully proved. But that, to do this, it was essentially necessary to have the enclosed paper in the letter to Balff as, without that, all the rest was but inference, and not the proof positive which the law required. As to Mr. Wood, he was described on one aide as very active in the affair, and on the other side as quite inoffensive. Aiders and abetters are always esteemed parties: but if a person present remains only a spectator, be cannot be affected. The evidence on the one side had been positive, and on the other side only negative, Mr. Wood might have said and done as represented on the one side, when the evidences on the other side were not present: if upon the whole they should be of opinion, that Mr. Wood was active in the affair, they must find a verdict for the plaintiff with damages. His Lordship then went upon the warrant, which be declared was a point of the greatest consequence he had ever met with in his whole practice. The defendants claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, &c. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chalice to fall. If such a power is truly invested in a Secretary of State, and he call delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.
And as for the precedents, will that be esteemed law in a Secretary of State which is not law in any other magistrate of this kingdom? If they should be found to be legal, they are certainly of the most dangerous consequences; if not legal, must aggravate damages. Notwithstanding what Mr. Solicitor-General has said, I have formerly delivered it as my opinion on another occasion, and I still continue of the same mind, that a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but  likewise as a punishment to the guilty, to deter from any such [*499] proceeding for the future, and as a proof of the detestation of the jury to the action itself. [†]
As to the proof of what papers were taken away, the plaintiff could have no account of them; and those who were able to have given an account (which might have been an extenuation of their guilt) have produced none. It lays upon the jury to allow what weight they think proper to that part of the evidence. It is my opinion the office precedents, which had been produced since the Revolution, are no justification of a practice in itself illegal, and contrary to the fundamental principles of the constitution; though its having been the constant practice of the office, might fairly be pleaded in mitigation of damages.[‡]
He then told the jury they had a very material affair to determine upon, and recommended it to them to be particularly cautious in bringing in their verdict. Observed, that if the jury found Mr. Wilkes the author or publisher of No. 45, it will be filed, and stand upon record in the Court of Common Pleas, and of course be produced as proof, upon the criminal cause depending, in barr of any future more ample discussion of that matter on both sides; that on the other side they should be equally careful to do justice, according to the evidence; he therefore left it to their consideration.
The jury, after withdrawing for near half an hour, returned, and found a general verdict upon both issues for the plaintiff, with a thousand pounds damages. After the verdict was recorded, the Solicitor-General offered to prefer a bill of exceptions, which the Lord Chief Justice refused to accept, saying it was out of time.
The Court sat at in the morning, and the verdict was brought in at twenty minutes past at night.
[Scan courtesy of Shayana Kadidal, Center for Constitutional Rights]
We made this camp for people who would be here forever. You should never think of getting home. You'll be here for all your life. Maybe one day my son will come to see you as you get old. Don't worry. We'll keep you alive so you can suffer more. If you don't believe me, look at these walls.
Interrogator to Mohammed C, 15 year old detainee at Guantanamo. from Amnesty report, July 2005.
Here you are, and you're not in a sanitorium! You'll have figured that out already. Anyone who hasn't grasped that will soon be made to. You can rely on that... You're not prison inmates here, serving a sentence imposed by the courts, you're just 'prisoners' pure and simple, and if you don't know what that means, you'll soon find out. You have no honor and no defenses. You have no rights. Your fate is a slave's fate. Amen.
Camp commandant's orientation speech to prisoners in preventative detention, Buchenwald, 1937. from Walter Poller memoirs.