http://www.michigandaily.com/vnews/display.v/ART/2005/04/20/42663c1184612

******

Vewpoint: Society, my ass and me

By Brian Kelly

April 20, 2005

I caught my friend coveting my ass the other day. Well, I should say former friend. Ever since I heard him ask where women came from if Adam and Eve had no daughters, we are no longer on speaking terms.

Two days ago, I was riding down State Street on my ass, a healthy mule I had gotten as part of a trade for some barrels of wheat and an old tractor of mine that needed repairs. I passed my friend, my face stony, staring straight ahead, but my curiosity got the better of me. When I turned to look at him, he was gaping at my ass — I mean, gaping. Mouth open, eyes bulging, the whole works. He looked as if he had never seen such an ass before. I admit it is in good shape. I have it do stretches and at least four hours of manual labor every day, some heavy pushing and stamina work — normal ass stuff. My ass never got sweaty, though — you’d never see my ass give up an inch. I would say my ass has the best pair of lungs on the block, no kidding. But that doesn’t give my friend the right to covet.

I hailed a police officer over, but that didn’t stop my friend. He was literally transfixed by the body of my ass. The policeman cuffed my friend and took him down to the station, but he said he would go only if my ass would bring up the rear. Otherwise, he would put up a big stink. He was giving my ass the brown eye from the back of the police car all the way to the station.

Fast-forward to a couple of weeks later, Case Number 73-45 in the Washtenaw County Court, Judge Mann Attson presiding.

The prosecutor began: “Gentlemen and non-menstruating ladies of the jury (At this, a middle-aged woman with puffy brown hair promptly and embarrassedly stood and left..), we are here today to decide whether the defendant, Walter Arndt, did knowingly and excessively covet the victim’s ass in public, in full view of women and children, and with total disregard to the Ten Laws of the Land.”

The bailiff now swore my friend in.

“Do you agree to tell the truth, the whole truth, and nothing but the truth, so help you God?”

“I do,” said my friend. My ass, he did!

The prosecutor began. “Are you familiar with the Ten Laws of the Land?”

“I only recognize one law of the land,” said my friend.

“Blasphemy! What one law is that?” cried the prosecutor.

“The Constitution of the United States of America,” said my former friend.

“And what, pray tell, does this ‘constitution’ say?” said the prosecutor, waving his hands as if he were swatting a fly. There were giggles of laughter from the audience.

“It says that no law may be passed respecting an establishment of religion, or prohibiting the free exercise thereof,” said my deranged former friend. You could hear a pin drop.

“Madness! I will wipe my client’s ass with your Constitution! Furthermore, who is being prohibited from free exercise? We encourage religion of all kinds, as long as they are based on the Ten Laws of the Land.”

“Exactly!” cried my friend. “No one’s exercising anything. You can’t—”

“I believe someone is exercising their right to make a public jackass of himself!” said the prosecutor with a grin. “And furthermore, speaking of jackasses, did you covet this man’s ass?”

“I may have,” said my friend with shame.

“What need do we have of this trial? Hang this man!” cried the prosecutor.

I walked to the hanging, choosing to leave my ass at home — it was worn out from a long day of rigorous pounding. I felt that some justice had been served, even though the prosecution had neglected to bring up all of the evidence I had collected on the extensive coveting by my friend over the years — like when he complimented my wife on her hair, or the time he said my manservant Alfred made the best tea cookies. As my friend’s neck snapped, I promised this to myself: I will never hide my ass from the public, no matter what shape it is in. If we have 10 things in this world that are true, let them be the Ten Laws of the Land, and let them never allow any amount of coveting to come between society, my ass and me.

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2598154)

in this setting it was terribly horrid.

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2598912)

Pathetic.

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2689505)

"Your feedback will then be reviewed by our moderator. "

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2599084)

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(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2689463)

Alexandra Jones: Keep your spiritual beliefs off my body

story image 1

By Alexandra Jones: Ce n'est pas une pipe dream

May 03, 2005

I’m walking — OK, running — up the steps of the University Health Services Building. What I’m about to do has been playing through my mind in bits and pieces ever since late last night, or, depending on how you think about it, very early this morning. I don’t know what to expect, or how exactly I’m supposed to ask for what I need. All I really know is that I have to do it. It has to get done.

I check in at the walk-in appointment desk, grab a clipboard and sit down in the waiting area to fill out the form. This much I’m used to. I check the right box and wait until I’m called. When it’s finally my turn — by now I’m feeling physically ill with anxiety — I step up to the UHS representative’s cubicle and briefly, absently explain my situation. After a pause, the second person I’ve told about my problem pulls a green paper square the size of a Post-It out of a desk drawer and affixes it to my file. The square reads a bold, black “EC.” The speedy and casual procurement of this bit of paper brings on the first reassurance I’ve felt all day.

A few hours later, after a slightly comforting, sort of scary discussion with a nurse practitioner and a trip to the UHS pharmacist, I got home and popped the first of two Plan B pills I’d have to take that day. It was done. I couldn’t do any more.

If we’re to let idiots in high places like Pharmacists for Life president Karen Brauer decide what’s morally and medically right, conscientious, consenting adults like me (and most of you) would be, as it were, screwed. In a Washington Post op-ed printed March 28, Brauer compared a pharmacist filling a prescription for emergency contracception to a doctor violating the Hippocratic Oath. Pharmacists like Brauer — in Tennessee and Wisconsin and my home state of North Carolina — confuse or willfully disregard the distinction between an abortion and the way emergency contraception works.

Let me set the record straight: Like condoms, spermicides and birth-control pills, emergency contraception prevents the implantation of a fertilized egg. It won’t have any effect on an already-implanted fertilized egg (a pregnancy); emergency contraception prevents pregnancy at a stage where there’s simply nothing to abort. My medical education pretty much ended with high-school health class, but I can make the distinction between the two — let alone between proper patient care and religious vigilantism.

According to these maverick pharmacists, who cite spiritual beliefs when they refuse to fill prescriptions or return physicians’ orders to patients, neither I nor my doctor have the right to determine whether I receive emergency contraception. It doesn’t matter that I’m in school and have a 3.6 GPA, that I want to build a career after college or that I’m basically a decent person. It doesn’t matter that getting pregnant anytime in the next 10 years is my worst nightmare, that I take double precautions when having sex, that at best they’re just making my life hell for the few moments I’d have to deal with them, and at worst they’re threatening to take away my peace of mind, my self-esteem, my clear conscience, my sanity. I should burn for what I did, and they’re sure as hell not going with me.

What surprised me most about the only time I’ve ever gotten emergency contraception was the shame I felt until it was over. Not from the conviction that I shouldn’t have had sex before marriage, or that I should have been more careful — there was no way I could have been more careful — but because I felt stupid. Stupid, clumsy, unlucky, tragic.

Whether a woman is married, in a relationship or single, whether she has five kids or none, whether she has been prescribed a time-sensitive drug after carelessness or sexual assault, she should be treated with respect and fast, quality service. For about 12 hours, I was in danger of losing my lifestyle, my academic career and probably, as a result of my own disgust with the situation, my relationship with the person I’m closest to. I don’t deserve that — nobody does — and I thank those physicians and pharmacists who agree with me.

Jones is a Daily fall/winter associate arts editor. She can be reached at almajo@umich.edu.

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http://www.michigandaily.com/vnews/display.v/ART/2005/05/03/4277b3f32f2fe

Karl Stampfl: A view from the wrong side of history

May 03, 2005

My German-born grandmother’s initial reaction to the white smoke signifying that Catholics would have the first German pope in five centuries was excitement. But as the days passed, she grew less enchanted with the idea. My father — who was not born in Germany but whose childhood was dipped in the culture of Sauerkraut and liverwurst — agreed.

“This isn’t good for Germans,” he said as we watched the pope’s inception ceremony. “Especially your grandmother.”

Neither my grandmother nor my father doubted Pope Benedict XVI would lead the church honorably. They were upset because when people talked about the man formerly known as Joseph Ratzinger, they were foregoing additional discussion about his doctrine in favor of speaking about his ties to the Nazi party during World War II.

“He was so young,” my grandmother said. “How could he have known?”

I suspect she was asking the question more of herself than of the pope. Like Benedict, my grandmother was in Germany during the war. Born in 1935, she took her first steps and said her first word with Hitler’s stern voice booming through the radio as background noise. Before her 10th birthday, she never knew anything other than Nazism, especially with her father working as a military firefighter. What 10-year-old girl would not believe in the cause her father and everyone else she knew was fighting for?

All her life, the distinction of being a former Nazi sympathizer has followed her. Conversation naturally funnels toward it, moreso lately with the pope’s past in the news.

“Where were you born?” someone will ask her. She’ll answer, they’ll gauge her age, and then you’ll be able to read it in their eyes — oh, so you were one of them, the most notorious evildoers in recent history.

One of the 20th century’s greatest villains: my grandmother.

Now she’s worried that what the pope was busy doing during World War II will define his papacy.

“The first time he does something the media doesn’t like, they’ll blame it on his German heritage, and all we’ll be talking about is what he did when he was 14 years old,” my father said.

Not much is known about the pope’s role during the Nazi era. What is known points toward an unwilling relationship with the Nazis, including a forced involvement with the Hitler Youth. But the media still wants to know if he housed any Jewish people and, if not, why didn’t he? No matter what really happened, the pope will remain tainted by his past, especially in England, where a host of newspapers have criticized his involvement with the Nazis and questioned his character because of it.

The whole issue forms a dilemma. It would be unwise to forget the Nazis’ evils, but it would be unfair to allow a connection to Nazism from his formative years define a German’s life 50 years later. For too many, their only fault was being in the wrong place at the wrongest of times.

Up to now, it has been fair to investigate and talk about Ratzinger’s past. The public needs to know about his character, and when you become pope — a public figure — you’re fair game. Now that everything has presumably been uncovered, it’s time to judge him on his papacy. Every unnecessary concern raised about his past not only burdens him, it burdens people like my grandmother.

As you read this, she’s probably sitting at her kitchen table, a gentle woman with a bad hip. Someone will call, and she’ll talk with a slight German accent that still hasn’t completely worn off. Mostly, though, it’s gone. After 50 years here, she’s not really a German anymore; she’s an American.

If you won’t reconsider your prejudices toward certain World War II-era Germans for her at 74 years old, do it for her at 19 as she was crossing the Atlantic alone to come to America. If that still doesn’t work, picture her at 10, a young girl overwhelmed by her war-torn world, struggling to simply stay alive — a bomb once landed inside her house but didn’t explode — let alone be on the right side of history.

Stampfl is a Daily fall/winter administration beat reporter. He can be reached at kstampfl@umich.edu.

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2695971)

USA PATRIOT Act Page | USA PATRIOT Act Sunset Page | USA PATRIOT Act FOIA Page

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(Also available in PDF)

HR 3162 RDS

107th CONGRESS

1st Session

H. R. 3162

IN THE SENATE OF THE UNITED STATES

October 24, 2001

Received

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AN ACT

To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001'. (b) TABLE OF CONTENTS- The table of contents for this Act is as follows:

Sec. 1. Short title and table of contents.

Sec. 2. Construction; severability.

TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM

Sec. 101. Counterterrorism fund.

Sec. 102. Sense of Congress condemning discrimination against Arab and Muslim Americans.

Sec. 103. Increased funding for the technical support center at the Federal Bureau of Investigation.

Sec. 104. Requests for military assistance to enforce prohibition in certain emergencies.

Sec. 105. Expansion of National Electronic Crime Task Force Initiative.

Sec. 106. Presidential authority.

TITLE II--ENHANCED SURVEILLANCE PROCEDURES

Sec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism.

Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses.

Sec. 203. Authority to share criminal investigative information.

Sec. 204. Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications.

Sec. 205. Employment of translators by the Federal Bureau of Investigation.

Sec. 206. Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.

Sec. 207. Duration of FISA surveillance of non-United States persons who are agents of a foreign power.

Sec. 208. Designation of judges.

Sec. 209. Seizure of voice-mail messages pursuant to warrants.

Sec. 210. Scope of subpoenas for records of electronic communications.

Sec. 211. Clarification of scope.

Sec. 212. Emergency disclosure of electronic communications to protect life and limb.

Sec. 213. Authority for delaying notice of the execution of a warrant.

Sec. 214. Pen register and trap and trace authority under FISA.

Sec. 215. Access to records and other items under the Foreign Intelligence Surveillance Act.

Sec. 216. Modification of authorities relating to use of pen registers and trap and trace devices.

Sec. 217. Interception of computer trespasser communications.

Sec. 218. Foreign intelligence information.

Sec. 219. Single-jurisdiction search warrants for terrorism.

Sec. 220. Nationwide service of search warrants for electronic evidence.

Sec. 221. Trade sanctions.

Sec. 222. Assistance to law enforcement agencies.

Sec. 223. Civil liability for certain unauthorized disclosures.

Sec. 224. Sunset.

Sec. 225. Immunity for compliance with FISA wiretap.

TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST FINANCING ACT OF 2001

Sec. 301. Short title.

Sec. 302. Findings and purposes.

Sec. 303. 4-year congressional review; expedited consideration.

Subtitle A--International Counter Money Laundering and Related Measures

Sec. 311. Special measures for jurisdictions, financial institutions, or international transactions of primary money laundering concern.

Sec. 312. Special due diligence for correspondent accounts and private banking accounts.

Sec. 313. Prohibition on United States correspondent accounts with foreign shell banks.

Sec. 314. Cooperative efforts to deter money laundering.

Sec. 315. Inclusion of foreign corruption offenses as money laundering crimes.

Sec. 316. Anti-terrorist forfeiture protection.

Sec. 317. Long-arm jurisdiction over foreign money launderers.

Sec. 318. Laundering money through a foreign bank.

Sec. 319. Forfeiture of funds in United States interbank accounts.

Sec. 320. Proceeds of foreign crimes.

Sec. 321. Financial institutions specified in subchapter II of chapter 53 of title 31, United States code.

Sec. 322. Corporation represented by a fugitive.

Sec. 323. Enforcement of foreign judgments.

Sec. 324. Report and recommendation.

Sec. 325. Concentration accounts at financial institutions.

Sec. 326. Verification of identification.

Sec. 327. Consideration of anti-money laundering record.

Sec. 328. International cooperation on identification of originators of wire transfers.

Sec. 329. Criminal penalties.

Sec. 330. International cooperation in investigations of money laundering, financial crimes, and the finances of terrorist groups.

Subtitle B--Bank Secrecy Act Amendments and Related Improvements

Sec. 351. Amendments relating to reporting of suspicious activities.

Sec. 352. Anti-money laundering programs.

Sec. 353. Penalties for violations of geographic targeting orders and certain recordkeeping requirements, and lengthening effective period of geographic targeting orders.

Sec. 354. Anti-money laundering strategy.

Sec. 355. Authorization to include suspicions of illegal activity in written employment references.

Sec. 356. Reporting of suspicious activities by securities brokers and dealers; investment company study.

Sec. 357. Special report on administration of bank secrecy provisions.

Sec. 358. Bank secrecy provisions and activities of United States intelligence agencies to fight international terrorism.

Sec. 359. Reporting of suspicious activities by underground banking systems.

Sec. 360. Use of authority of United States Executive Directors.

Sec. 361. Financial crimes enforcement network.

Sec. 362. Establishment of highly secure network.

Sec. 363. Increase in civil and criminal penalties for money laundering.

Sec. 364. Uniform protection authority for Federal Reserve facilities.

Sec. 365. Reports relating to coins and currency received in nonfinancial trade or business.

Sec. 366. Efficient use of currency transaction report system.

Subtitle C--Currency Crimes and Protection

Sec. 371. Bulk cash smuggling into or out of the United States.

Sec. 372. Forfeiture in currency reporting cases.

Sec. 373. Illegal money transmitting businesses.

Sec. 374. Counterfeiting domestic currency and obligations.

Sec. 375. Counterfeiting foreign currency and obligations.

Sec. 376. Laundering the proceeds of terrorism.

Sec. 377. Extraterritorial jurisdiction.

TITLE IV--PROTECTING THE BORDER

Subtitle A--Protecting the Northern Border

Sec. 401. Ensuring adequate personnel on the northern border.

Sec. 402. Northern border personnel.

Sec. 403. Access by the Department of State and the INS to certain identifying information in the criminal history records of visa applicants and applicants for admission to the United States.

Sec. 404. Limited authority to pay overtime.

Sec. 405. Report on the integrated automated fingerprint identification system for ports of entry and overseas consular posts.

Subtitle B--Enhanced Immigration Provisions

Sec. 411. Definitions relating to terrorism.

Sec. 412. Mandatory detention of suspected terrorists; habeas corpus; judicial review.

Sec. 413. Multilateral cooperation against terrorists.

Sec. 414. Visa integrity and security.

Sec. 415. Participation of Office of Homeland Security on Entry-Exit Task Force.

Sec. 416. Foreign student monitoring program.

Sec. 417. Machine readable passports.

Sec. 418. Prevention of consulate shopping.

Subtitle C--Preservation of Immigration Benefits for Victims of Terrorism

Sec. 421. Special immigrant status.

Sec. 422. Extension of filing or reentry deadlines.

Sec. 423. Humanitarian relief for certain surviving spouses and children.

Sec. 424. `Age-out' protection for children.

Sec. 425. Temporary administrative relief.

Sec. 426. Evidence of death, disability, or loss of employment.

Sec. 427. No benefits to terrorists or family members of terrorists.

Sec. 428. Definitions.

TITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM

Sec. 501. Attorney General's authority to pay rewards to combat terrorism.

Sec. 502. Secretary of State's authority to pay rewards.

Sec. 503. DNA identification of terrorists and other violent offenders.

Sec. 504. Coordination with law enforcement.

Sec. 505. Miscellaneous national security authorities.

Sec. 506. Extension of Secret Service jurisdiction.

Sec. 507. Disclosure of educational records.

Sec. 508. Disclosure of information from NCES surveys.

TITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS, AND THEIR FAMILIES

Subtitle A--Aid to Families of Public Safety Officers

Sec. 611. Expedited payment for public safety officers involved in the prevention, investigation, rescue, or recovery efforts related to a terrorist attack.

Sec. 612. Technical correction with respect to expedited payments for heroic public safety officers.

Sec. 613. Public safety officers benefit program payment increase.

Sec. 614. Office of Justice programs.

Subtitle B--Amendments to the Victims of Crime Act of 1984

Sec. 621. Crime victims fund.

Sec. 622. Crime victim compensation.

Sec. 623. Crime victim assistance.

Sec. 624. Victims of terrorism.

TITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE PROTECTION

Sec. 711. Expansion of regional information sharing system to facilitate Federal-State-local law enforcement response related to terrorist attacks.

TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

Sec. 801. Terrorist attacks and other acts of violence against mass transportation systems.

Sec. 802. Definition of domestic terrorism.

Sec. 803. Prohibition against harboring terrorists.

Sec. 804. Jurisdiction over crimes committed at U.S. facilities abroad.

Sec. 805. Material support for terrorism.

Sec. 806. Assets of terrorist organizations.

Sec. 807. Technical clarification relating to provision of material support to terrorism.

Sec. 808. Definition of Federal crime of terrorism.

Sec. 809. No statute of limitation for certain terrorism offenses.

Sec. 810. Alternate maximum penalties for terrorism offenses.

Sec. 811. Penalties for terrorist conspiracies.

Sec. 812. Post-release supervision of terrorists.

Sec. 813. Inclusion of acts of terrorism as racketeering activity.

Sec. 814. Deterrence and prevention of cyberterrorism.

Sec. 815. Additional defense to civil actions relating to preserving records in response to Government requests.

Sec. 816. Development and support of cybersecurity forensic capabilities.

Sec. 817. Expansion of the biological weapons statute.

TITLE IX--IMPROVED INTELLIGENCE

Sec. 901. Responsibilities of Director of Central Intelligence regarding foreign intelligence collected under Foreign Intelligence Surveillance Act of 1978.

Sec. 902. Inclusion of international terrorist activities within scope of foreign intelligence under National Security Act of 1947.

Sec. 903. Sense of Congress on the establishment and maintenance of intelligence relationships to acquire information on terrorists and terrorist organizations.

Sec. 904. Temporary authority to defer submittal to Congress of reports on intelligence and intelligence-related matters.

Sec. 905. Disclosure to Director of Central Intelligence of foreign intelligence-related information with respect to criminal investigations.

Sec. 906. Foreign terrorist asset tracking center.

Sec. 907. National Virtual Translation Center.

Sec. 908. Training of government officials regarding identification and use of foreign intelligence.

TITLE X--MISCELLANEOUS

Sec. 1001. Review of the department of justice.

Sec. 1002. Sense of congress.

Sec. 1003. Definition of `electronic surveillance'.

Sec. 1004. Venue in money laundering cases.

Sec. 1005. First responders assistance act.

Sec. 1006. Inadmissibility of aliens engaged in money laundering.

Sec. 1007. Authorization of funds for dea police training in south and central asia.

Sec. 1008. Feasibility study on use of biometric identifier scanning system with access to the fbi integrated automated fingerprint identification system at overseas consular posts and points of entry to the United States.

Sec. 1009. Study of access.

Sec. 1010. Temporary authority to contract with local and State governments for performance of security functions at United States military installations.

Sec. 1011. Crimes against charitable americans.

Sec. 1012. Limitation on issuance of hazmat licenses.

Sec. 1013. Expressing the sense of the senate concerning the provision of funding for bioterrorism preparedness and response.

Sec. 1014. Grant program for State and local domestic preparedness support.

Sec. 1015. Expansion and reauthorization of the crime identification technology act for antiterrorism grants to States and localities.

Sec. 1016. Critical infrastructures protection.

SEC. 2. CONSTRUCTION; SEVERABILITY.

Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM

SEC. 101. COUNTERTERRORISM FUND.

(a) ESTABLISHMENT; AVAILABILITY- There is hereby established in the Treasury of the United States a separate fund to be known as the `Counterterrorism Fund', amounts in which shall remain available without fiscal year limitation--

(1) to reimburse any Department of Justice component for any costs incurred in connection with--

(A) reestablishing the operational capability of an office or facility that has been damaged or destroyed as the result of any domestic or international terrorism incident;

(B) providing support to counter, investigate, or prosecute domestic or international terrorism, including, without limitation, paying rewards in connection with these activities; and

(C) conducting terrorism threat assessments of Federal agencies and their facilities; and

(2) to reimburse any department or agency of the Federal Government for any costs incurred in connection with detaining in foreign countries individuals accused of acts of terrorism that violate the laws of the United States.

(b) NO EFFECT ON PRIOR APPROPRIATIONS- Subsection (a) shall not be construed to affect the amount or availability of any appropriation to the Counterterrorism Fund made before the date of the enactment of this Act.

SEC. 102. SENSE OF CONGRESS CONDEMNING DISCRIMINATION AGAINST ARAB AND MUSLIM AMERICANS.

(a) FINDINGS- Congress makes the following findings:

(1) Arab Americans, Muslim Americans, and Americans from South Asia play a vital role in our Nation and are entitled to nothing less than the full rights of every American.

(2) The acts of violence that have been taken against Arab and Muslim Americans since the September 11, 2001, attacks against the United States should be and are condemned by all Americans who value freedom.

(3) The concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups.

(4) When American citizens commit acts of violence against those who are, or are perceived to be, of Arab or Muslim descent, they should be punished to the full extent of the law.

(5) Muslim Americans have become so fearful of harassment that many Muslim women are changing the way they dress to avoid becoming targets.

(6) Many Arab Americans and Muslim Americans have acted heroically during the attacks on the United States, including Mohammed Salman Hamdani, a 23-year-old New Yorker of Pakistani descent, who is believed to have gone to the World Trade Center to offer rescue assistance and is now missing.

(b) SENSE OF CONGRESS- It is the sense of Congress that--

(1) the civil rights and civil liberties of all Americans, including Arab Americans, Muslim Americans, and Americans from South Asia, must be protected, and that every effort must be taken to preserve their safety;

(2) any acts of violence or discrimination against any Americans be condemned; and

(3) the Nation is called upon to recognize the patriotism of fellow citizens from all ethnic, racial, and religious backgrounds.

SEC. 103. INCREASED FUNDING FOR THE TECHNICAL SUPPORT CENTER AT THE FEDERAL BUREAU OF INVESTIGATION.

There are authorized to be appropriated for the Technical Support Center established in section 811 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) to help meet the demands for activities to combat terrorism and support and enhance the technical support and tactical operations of the FBI, $200,000,000 for each of the fiscal years 2002, 2003, and 2004.

SEC. 104. REQUESTS FOR MILITARY ASSISTANCE TO ENFORCE PROHIBITION IN CERTAIN EMERGENCIES.

Section 2332e of title 18, United States Code, is amended--

(1) by striking `2332c' and inserting `2332a'; and

(2) by striking `chemical'.

SEC. 105. EXPANSION OF NATIONAL ELECTRONIC CRIME TASK FORCE INITIATIVE.

The Director of the United States Secret Service shall take appropriate actions to develop a national network of electronic crime task forces, based on the New York Electronic Crimes Task Force model, throughout the United States, for the purpose of preventing, detecting, and investigating various forms of electronic crimes, including potential terrorist attacks against critical infrastructure and financial payment systems.

SEC. 106. PRESIDENTIAL AUTHORITY.

Section 203 of the International Emergency Powers Act (50 U.S.C. 1702) is amended--

(1) in subsection (a)(1)--

(A) at the end of subparagraph (A) (flush to that subparagraph), by striking `; and' and inserting a comma and the following:

`by any person, or with respect to any property, subject to the jurisdiction of the United States;';

(B) in subparagraph (B)--

(i) by inserting `, block during the pendency of an investigation' after `investigate'; and

(ii) by striking `interest;' and inserting `interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and';

(C) by striking `by any person, or with respect to any property, subject to the jurisdiction of the United States`; and

(D) by inserting at the end the following:

`(C) when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.'; and

(2) by inserting at the end the following:

`(c) CLASSIFIED INFORMATION- In any judicial review of a determination made under this section, if the determination was based on classified information (as defined in section 1(a) of the Classified Information Procedures Act) such information may be submitted to the reviewing court ex parte and in camera. This subsection does not confer or imply any right to judicial review.'.

TITLE II--ENHANCED SURVEILLANCE PROCEDURES

SEC. 201. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS RELATING TO TERRORISM.

Section 2516(1) of title 18, United States Code, is amended--

(1) by redesignating paragraph (p), as so redesignated by section 434(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1274), as paragraph (r); and

(2) by inserting after paragraph (p), as so redesignated by section 201(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 110 Stat. 3009-565), the following new paragraph:

`(q) any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to terrorism); or'.

SEC. 202. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS RELATING TO COMPUTER FRAUD AND ABUSE OFFENSES.

Section 2516(1)(c) of title 18, United States Code, is amended by striking `and section 1341 (relating to mail fraud),' and inserting `section 1341 (relating to mail fraud), a felony violation of section 1030 (relating to computer fraud and abuse),'.

SEC. 203. AUTHORITY TO SHARE CRIMINAL INVESTIGATIVE INFORMATION.

(a) AUTHORITY TO SHARE GRAND JURY INFORMATION-

(1) IN GENERAL- Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure is amended to read as follows:

`(C)(i) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made--

`(I) when so directed by a court preliminarily to or in connection with a judicial proceeding;

`(II) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury;

`(III) when the disclosure is made by an attorney for the government to another Federal grand jury;

`(IV) when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law; or

`(V) when the matters involve foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in clause (iv) of this subparagraph), to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties.

`(ii) If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.

`(iii) Any Federal official to whom information is disclosed pursuant to clause (i)(V) of this subparagraph may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information. Within a reasonable time after such disclosure, an attorney for the government shall file under seal a notice with the court stating the fact that such information was disclosed and the departments, agencies, or entities to which the disclosure was made.

`(iv) In clause (i)(V) of this subparagraph, the term `foreign intelligence information' means--

`(I) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against--

`(aa) actual or potential attack or other grave hostile acts of-a foreign power or an agent of a foreign power;

`(bb) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

`(cc) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power; or

`(II) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to--

`(aa) the national defense or the security of the United States; or

`(bb) the conduct of the foreign affairs of the United States.'.

(2) CONFORMING AMENDMENT- Rule 6(e)(3)(D) of the Federal Rules of Criminal Procedure is amended by striking `(e)(3)(C)(i)' and inserting `(e)(3)(C)(i)(I)'.

(b) AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTERCEPTION INFORMATION-

(1) LAW ENFORCEMENT- Section 2517 of title 18, United States Code, is amended by inserting at the end the following:

`(6) Any investigative or law enforcement officer, or attorney for the Government, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title), to assist the official who is to receive that information in the performance of his official duties. Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.'.

(2) DEFINITION- Section 2510 of title 18, United States Code, is amended by--

(A) in paragraph (17), by striking `and' after the semicolon;

(B) in paragraph (18), by striking the period and inserting `; and'; and

(C) by inserting at the end the following:

`(19) `foreign intelligence information' means--

`(A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against--

`(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

`(ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

`(iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

`(B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to--

`(i) the national defense or the security of the United States; or

`(ii) the conduct of the foreign affairs of the United States.'.

(c) PROCEDURES- The Attorney General shall establish procedures for the disclosure of information pursuant to section 2517(6) and Rule 6(e)(3)(C)(i)(V) of the Federal Rules of Criminal Procedure that identifies a United States person, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)).

(d) FOREIGN INTELLIGENCE INFORMATION-

(1) IN GENERAL- Notwithstanding any other provision of law, it shall be lawful for foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)) or foreign intelligence information obtained as part of a criminal investigation to be disclosed to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties. Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.

(2) DEFINITION- In this subsection, the term `foreign intelligence information' means--

(A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against--

(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to--

(i) the national defense or the security of the United States; or

(ii) the conduct of the foreign affairs of the United States.

SEC. 204. CLARIFICATION OF INTELLIGENCE EXCEPTIONS FROM LIMITATIONS ON INTERCEPTION AND DISCLOSURE OF WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS.

Section 2511(2)(f) of title 18, United States Code, is amended--

(1) by striking `this chapter or chapter 121' and inserting `this chapter or chapter 121 or 206 of this title'; and

(2) by striking `wire and oral' and inserting `wire, oral, and electronic'.

SEC. 205. EMPLOYMENT OF TRANSLATORS BY THE FEDERAL BUREAU OF INVESTIGATION.

(a) AUTHORITY- The Director of the Federal Bureau of Investigation is authorized to expedite the employment of personnel as translators to support counterterrorism investigations and operations without regard to applicable Federal personnel requirements and limitations.

(b) SECURITY REQUIREMENTS- The Director of the Federal Bureau of Investigation shall establish such security requirements as are necessary for the personnel employed as translators under subsection (a).

(c) REPORT- The Attorney General shall report to the Committees on the Judiciary of the House of Representatives and the Senate on--

(1) the number of translators employed by the FBI and other components of the Department of Justice;

(2) any legal or practical impediments to using translators employed by other Federal, State, or local agencies, on a full, part-time, or shared basis; and

(3) the needs of the FBI for specific translation services in certain languages, and recommendations for meeting those needs.

SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting `, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after `specified person'.

SEC. 207. DURATION OF FISA SURVEILLANCE OF NON-UNITED STATES PERSONS WHO ARE AGENTS OF A FOREIGN POWER.

(a) DURATION -

(1) SURVEILLANCE- Section 105(e)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(e)(1)) is amended by--

(A) inserting `(A)' after `except that'; and

(B) inserting before the period the following: `, and (B) an order under this Act for a surveillance targeted against an agent of a foreign power, as defined in section 101(b)(1)(A) may be for the period specified in the application or for 120 days, whichever is less'.

(2) PHYSICAL SEARCH- Section 304(d)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)(1)) is amended by--

(A) striking `forty-five' and inserting `90';

(B) inserting `(A)' after `except that'; and

(C) inserting before the period the following: `, and (B) an order under this section for a physical search targeted against an agent of a foreign power as defined in section 101(b)(1)(A) may be for the period specified in the application or for 120 days, whichever is less'.

(b) EXTENSION-

(1) IN GENERAL- Section 105(d)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)(2)) is amended by--

(A) inserting `(A)' after `except that'; and

(B) inserting before the period the following: `, and (B) an extension of an order under this Act for a surveillance targeted against an agent of a foreign power as defined in section 101(b)(1)(A) may be for a period not to exceed 1 year'.

(2) DEFINED TERM- Section 304(d)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)(2) is amended by inserting after `not a United States person,' the following: `or against an agent of a foreign power as defined in section 101(b)(1)(A),'.

SEC. 208. DESIGNATION OF JUDGES.

Section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended by--

(1) striking `seven district court judges' and inserting `11 district court judges'; and

(2) inserting `of whom no fewer than 3 shall reside within 20 miles of the District of Columbia' after `circuits'.

SEC. 209. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT TO WARRANTS.

Title 18, United States Code, is amended--

(1) in section 2510--

(A) in paragraph (1), by striking beginning with `and such' and all that follows through `communication'; and

(B) in paragraph (14), by inserting `wire or' after `transmission of'; and

(2) in subsections (a) and (b) of section 2703--

(A) by striking `CONTENTS OF ELECTRONIC' and inserting `CONTENTS OF WIRE OR ELECTRONIC' each place it appears;

(B) by striking `contents of an electronic' and inserting `contents of a wire or electronic' each place it appears; and

(C) by striking `any electronic' and inserting `any wire or electronic' each place it appears.

SEC. 210. SCOPE OF SUBPOENAS FOR RECORDS OF ELECTRONIC COMMUNICATIONS.

Section 2703(c)(2) of title 18, United States Code, as redesignated by section 212, is amended--

(1) by striking `entity the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber' and inserting the following: `entity the--

`(A) name;

`(B) address;

`(C) local and long distance telephone connection records, or records of session times and durations;

`(D) length of service (including start date) and types of service utilized;

`(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

`(F) means and source of payment for such service (including any credit card or bank account number),

of a subscriber'; and

(2) by striking `and the types of services the subscriber or customer utilized,'.

SEC. 211. CLARIFICATION OF SCOPE.

Section 631 of the Communications Act of 1934 (47 U.S.C. 551) is amended--

(1) in subsection (c)(2)--

(A) in subparagraph (B), by striking `or';

(B) in subparagraph (C), by striking the period at the end and inserting `; or'; and

(C) by inserting at the end the following:

`(D) to a government entity as authorized under chapters 119, 121, or 206 of title 18, United States Code, except that such disclosure shall not include records revealing cable subscriber selection of video programming from a cable operator.'; and

(2) in subsection (h), by striking `A governmental entity' and inserting `Except as provided in subsection (c)(2)(D), a governmental entity'.

SEC. 212. EMERGENCY DISCLOSURE OF ELECTRONIC COMMUNICATIONS TO PROTECT LIFE AND LIMB.

(a) DISCLOSURE OF CONTENTS-

(1) IN GENERAL- Section 2702 of title 18, United States Code, is amended--

(A) by striking the section heading and inserting the following:

`Sec. 2702. Voluntary disclosure of customer communications or records';

(B) in subsection (a)--

(i) in paragraph (2)(A), by striking `and' at the end;

(ii) in paragraph (2)(B), by striking the period and inserting `; and'; and

(iii) by inserting after paragraph (2) the following:

`(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.';

(C) in subsection (b), by striking `EXCEPTIONS- A person or entity' and inserting `EXCEPTIONS FOR DISCLOSURE OF COMMUNICATIONS- A provider described in subsection (a)';

(D) in subsection (b)(6)--

(i) in subparagraph (A)(ii), by striking `or';

(ii) in subparagraph (B), by striking the period and inserting `; or'; and

(iii) by adding after subparagraph (B) the following:

`(C) if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information without delay.'; and

(E) by inserting after subsection (b) the following:

`(c) EXCEPTIONS FOR DISCLOSURE OF CUSTOMER RECORDS- A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))--

`(1) as otherwise authorized in section 2703;

`(2) with the lawful consent of the customer or subscriber;

`(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

`(4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or

`(5) to any person other than a governmental entity.'.

(2) TECHNICAL AND CONFORMING AMENDMENT- The table of sections for chapter 121 of title 18, United States Code, is amended by striking the item relating to section 2702 and inserting the following:

`2702. Voluntary disclosure of customer communications or records.'.

(b) REQUIREMENTS FOR GOVERNMENT ACCESS-

(1) IN GENERAL- Section 2703 of title 18, United States Code, is amended--

(A) by striking the section heading and inserting the following:

`Sec. 2703. Required disclosure of customer communications or records';

(B) in subsection (c) by redesignating paragraph (2) as paragraph (3);

(C) in subsection (c)(1)--

(i) by striking `(A) Except as provided in subparagraph (B), a provider of electronic communication service or remote computing service may' and inserting `A governmental entity may require a provider of electronic communication service or remote computing service to';

(ii) by striking `covered by subsection (a) or (b) of this section) to any person other than a governmental entity.

`(B) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to a governmental entity' and inserting `)';

(iii) by redesignating subparagraph (C) as paragraph (2);

(iv) by redesignating clauses (i), (ii), (iii), and (iv) as subparagraphs (A), (B), (C), and (D), respectively;

(v) in subparagraph (D) (as redesignated) by striking the period and inserting `; or'; and

(vi) by inserting after subparagraph (D) (as redesignated) the following:

`(E) seeks information under paragraph (2).'; and

(D) in paragraph (2) (as redesignated) by striking `subparagraph (B)' and insert `paragraph (1)'.

(2) TECHNICAL AND CONFORMING AMENDMENT- The table of sections for chapter 121 of title 18, United States Code, is amended by striking the item relating to section 2703 and inserting the following:

`2703. Required disclosure of customer communications or records.'.

SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT.

Section 3103a of title 18, United States Code, is amended--

(1) by inserting `(a) IN GENERAL- ' before `In addition'; and

(2) by adding at the end the following:

`(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--

`(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);

`(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and

`(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'.

SEC. 214. PEN REGISTER AND TRAP AND TRACE AUTHORITY UNDER FISA.

(a) APPLICATIONS AND ORDERS- Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended--

(1) in subsection (a)(1), by striking `for any investigation to gather foreign intelligence information or information concerning international terrorism' and inserting `for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution';

(2) by amending subsection (c)(2) to read as follows:

`(2) a certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.';

(3) by striking subsection (c)(3); and

(4) by amending subsection (d)(2)(A) to read as follows:

`(A) shall specify--

`(i) the identity, if known, of the person who is the subject of the investigation;

`(ii) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;

`(iii) the attributes of the communications to which the order applies, such as the number or other identifier, and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of a trap and trace device, the geographic limits of the trap and trace order.'.

(b) AUTHORIZATION DURING EMERGENCIES- Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended--

(1) in subsection (a), by striking `foreign intelligence information or information concerning international terrorism' and inserting `foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution'; and

(2) in subsection (b)(1), by striking `foreign intelligence information or information concerning international terrorism' and inserting `foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution'.

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

`SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.

`(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

`(2) An investigation conducted under this section shall--

`(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and

`(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

`(b) Each application under this section--

`(1) shall be made to--

`(A) a judge of the court established by section 103(a); or

`(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

`(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.

`(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

`(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

`(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

`(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

`SEC. 502. CONGRESSIONAL OVERSIGHT.

`(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.

`(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period--

`(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and

`(2) the total number of such orders either granted, modified, or denied.'.

SEC. 216. MODIFICATION OF AUTHORITIES RELATING TO USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES.

(a) GENERAL LIMITATIONS- Section 3121(c) of title 18, United States Code, is amended--

(1) by inserting `or trap and trace device' after `pen register';

(2) by inserting `, routing, addressing,' after `dialing'; and

(3) by striking `call processing' and inserting `the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications'.

(b) ISSUANCE OF ORDERS-

(1) IN GENERAL- Section 3123(a) of title 18, United States Code, is amended to read as follows:

`(a) IN GENERAL-

`(1) ATTORNEY FOR THE GOVERNMENT- Upon an application made under section 3122(a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. The order, upon service of that order, shall apply to any person or entity providing wire or electronic communication service in the United States whose assistance may facilitate the execution of the order. Whenever such an order is served on any person or entity not specifically named in the order, upon request of such person or entity, the attorney for the Government or law enforcement or investigative officer that is serving the order shall provide written or electronic certification that the order applies to the person or entity being served.

`(2) STATE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER- Upon an application made under section 3122(a)(2), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device within the jurisdiction of the court, if the court finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.

`(3)(A) Where the law enforcement agency implementing an ex parte order under this subsection seeks to do so by installing and using its own pen register or trap and trace device on a packet-switched data network of a provider of electronic communication service to the public, the agency shall ensure that a record will be maintained which will identify--

`(i) any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network;

`(ii) the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information;

`(iii) the configuration of the device at the time of its installation and any subsequent modification thereof; and

`(iv) any information which has been collected by the device.

To the extent that the pen register or trap and trace device can be set automatically to record this information electronically, the record shall be maintained electronically throughout the installation and use of such device.

`(B) The record maintained under subparagraph (A) shall be provided ex parte and under seal to the court which entered the ex parte order authorizing the installation and use of the device within 30 days after termination of the order (including any extensions thereof).'.

(2) CONTENTS OF ORDER- Section 3123(b)(1) of title 18, United States Code, is amended--

(A) in subparagraph (A)--

(i) by inserting `or other facility' after `telephone line'; and

(ii) by inserting before the semicolon at the end `or applied'; and

(B) by striking subparagraph (C) and inserting the following:

`(C) the attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied, and, in the case of an order authorizing installation and use of a trap and trace device under subsection (a)(2), the geographic limits of the order; and'.

(3) NONDISCLOSURE REQUIREMENTS- Section 3123(d)(2) of title 18, United States Code, is amended--

(A) by inserting `or other facility' after `the line'; and

(B) by striking `, or who has been ordered by the court' and inserting `or applied, or who is obligated by the order'.

(c) DEFINITIONS-

(1) COURT OF COMPETENT JURISDICTION- Section 3127(2) of title 18, United States Code, is amended by striking subparagraph (A) and inserting the following:

`(A) any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals having jurisdiction over the offense being investigated; or'.

(2) PEN REGISTER- Section 3127(3) of title 18, United States Code, is amended--

(A) by striking `electronic or other impulses' and all that follows through `is attached' and inserting `dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication'; and

(B) by inserting `or process' after `device' each place it appears.

(3) TRAP AND TRACE DEVICE- Section 3127(4) of title 18, United States Code, is amended--

(A) by striking `of an instrument' and all that follows through the semicolon and inserting `or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication;'; and

(B) by inserting `or process' after `a device'.

(4) CONFORMING AMENDMENT- Section 3127(1) of title 18, United States Code, is amended--

(A) by striking `and'; and

(B) by inserting `, and `contents' after `electronic communication service'.

(5) TECHNICAL AMENDMENT- Section 3124(d) of title 18, United States Code, is amended by striking `the terms of'.

(6) CONFORMING AMENDMENT- Section 3124(b) of title 18, United States Code, is amended by inserting `or other facility' after `the appropriate line'.

SEC. 217. INTERCEPTION OF COMPUTER TRESPASSER COMMUNICATIONS.

Chapter 119 of title 18, United States Code, is amended--

(1) in section 2510--

(A) in paragraph (18), by striking `and' at the end;

(B) in paragraph (19), by striking the period and inserting a semicolon; and

(C) by inserting after paragraph (19) the following:

`(20) `protected computer' has the meaning set forth in section 1030; and

`(21) `computer trespasser'--

`(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and

`(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.'; and

(2) in section 2511(2), by inserting at the end the following:

`(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if--

`(I) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer;

`(II) the person acting under color of law is lawfully engaged in an investigation;

`(III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and

`(IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser.'.

SEC. 218. FOREIGN INTELLIGENCE INFORMATION.

Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.

SEC. 219. SINGLE-JURISDICTION SEARCH WARRANTS FOR TERRORISM.

Rule 41(a) of the Federal Rules of Criminal Procedure is amended by inserting after `executed' the following: `and (3) in an investigation of domestic terrorism or international terrorism (as defined in section 2331 of title 18, United States Code), by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district'.

SEC. 220. NATIONWIDE SERVICE OF SEARCH WARRANTS FOR ELECTRONIC EVIDENCE.

(a) IN GENERAL- Chapter 121 of title 18, United States Code, is amended--

(1) in section 2703, by striking `under the Federal Rules of Criminal Procedure' every place it appears and inserting `using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation'; and

(2) in section 2711--

(A) in paragraph (1), by striking `and';

(B) in paragraph (2), by striking the period and inserting `; and'; and

(C) by inserting at the end the following:

`(3) the term `court of competent jurisdiction' has the meaning assigned by section 3127, and includes any Federal court within that definition, without geographic limitation.'.

(b) CONFORMING AMENDMENT- Section 2703(d) of title 18, United States Code, is amended by striking `described in section 3127(2)(A)'.

SEC. 221. TRADE SANCTIONS.

(a) IN GENERAL- The Trade Sanctions Reform and Export Enhancement Act of 2000 (Public Law 106-387; 114 Stat. 1549A-67) is amended--

(1) by amending section 904(2)(C) to read as follows:

`(C) used to facilitate the design, development, or production of chemical or biological weapons, missiles, or weapons of mass destruction.';

(2) in section 906(a)(1)--

(A) by inserting `, the Taliban or the territory of Afghanistan controlled by the Taliban,' after `Cuba'; and

(B) by inserting `, or in the territory of Afghanistan controlled by the Taliban,' after `within such country'; and

(3) in section 906(a)(2), by inserting `, or to any other entity in Syria or North Korea' after `Korea'.

(b) APPLICATION OF THE TRADE SANCTIONS REFORM AND EXPORT ENHANCEMENT ACT- Nothing in the Trade Sanctions Reform and Export Enhancement Act of 2000 shall limit the application or scope of any law establishing criminal or civil penalties, including any executive order or regulation promulgated pursuant to such laws (or similar or successor laws), for the unlawful export of any agricultural commodity, medicine, or medical device to--

(1) a foreign organization, group, or person designated pursuant to Executive Order 12947 of January 23, 1995, as amended;

(2) a Foreign Terrorist Organization pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132);

(3) a foreign organization, group, or person designated pursuant to Executive Order 13224 (September 23, 2001);

(4) any narcotics trafficking entity designated pursuant to Executive Order 12978 (October 21, 1995) or the Foreign Narcotics Kingpin Designation Act (Public Law 106-120); or

(5) any foreign organization, group, or persons subject to any restriction for its involvement in weapons of mass destruction or missile proliferation.

SEC. 222. ASSISTANCE TO LAW ENFORCEMENT AGENCIES.

Nothing in this Act shall impose any additional technical obligation or requirement on a provider of a wire or electronic communication service or other person to furnish facilities or technical assistance. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to section 216 shall be reasonably compensated for such reasonable expenditures incurred in providing such facilities or assistance.

SEC. 223. CIVIL LIABILITY FOR CERTAIN UNAUTHORIZED DISCLOSURES.

(a) Section 2520 of title 18, United States Code, is amended--

(1) in subsection (a), after `entity', by inserting `, other than the United States,';

(2) by adding at the end the following:

`(f) ADMINISTRATIVE DISCIPLINE- If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.'; and

(3) by adding a new subsection (g), as follows:

`(g) IMPROPER DISCLOSURE IS VIOLATION- Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of information beyond the extent permitted by section 2517 is a violation of this chapter for purposes of section 2520(a).

(b) Section 2707 of title 18, United States Code, is amended--

(1) in subsection (a), after `entity', by inserting `, other than the United States,';

(2) by striking subsection (d) and inserting the following:

`(d) ADMINISTRATIVE DISCIPLINE- If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.'; and

(3) by adding a new subsection (g), as follows:

`(g) IMPROPER DISCLOSURE- Any willful disclosure of a `record', as that term is defined in section 552a(a) of title 5, United States Code, obtained by an investigative or law enforcement officer, or a governmental entity, pursuant to section 2703 of this title, or from a device installed pursuant to section 3123 or 3125 of this title, that is not a disclosure made in the proper performance of the official functions of the officer or governmental entity making the disclosure, is a violation of this chapter. This provision shall not apply to information previously lawfully disclosed (prior to the commencement of any civil or administrative proceeding under this chapter) to the public by a Federal, State, or local governmental entity or by the plaintiff in a civil action under this chapter.'.

(c)(1) Chapter 121 of title 18, United States Code, is amended by adding at the end the following:

`Sec. 2712. Civil actions against the United States

`(a) IN GENERAL- Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages. In any such action, if a person who is aggrieved successfully establishes such a violation of this chapter or of chapter 119 of this title or of the above specific provisions of title 50, the Court may assess as damages--

`(1) actual damages, but not less than $10,000, whichever amount is greater; and

`(2) litigation costs, reasonably incurred.

`(b) PROCEDURES- (1) Any action against the United States under this section may be commenced only after a claim is presented to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as set forth in title 28, United States Code. `(2) Any action against the United States under this section shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 years after such claim accrues or unless action is begun within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. The claim shall accrue o

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2696025)

The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by Amendment XVII, section 1.) for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; (and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.) (The preceding words in parentheses were superseded by Amendment XVII, section 2.)

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4 - Elections, Meetings

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall (be on the first Monday in December,) (The preceding words in parentheses were superseded by Amendment XX, section 2.) unless they shall by Law appoint a different Day.

Section 5 - Membership, Rules, Journals, Adjournment

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6 - Compensation

(The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.) (The preceding words in parentheses were modified by Amendment XXVII.) They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section 7 - Revenue Bills, Legislative Process, Presidential Veto

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9 - Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) (Section in parentheses modified by Amendment XVI.)

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Section 10 - Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

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Article II. - The Executive Branch Note

Section 1 - The President Note1 Note2

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

(The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.) (This clause in parentheses was superseded by Amendment XII.)

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

(In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.) (This clause in parentheses has been modified by Amendments XX and XXV.)

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

"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."

Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

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 Offenses 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 - State of the Union, Convening Congress

He shall from time to time give to the Congress Information of 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.

Section 4 - Disqualification

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

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Article III. - The Judicial Branch Note

Section 1 - Judicial powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by Amendment XI.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3 - Treason Note

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

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Article IV. - The States

Section 1 - Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 - State citizens, Extradition

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

(No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.) (This clause in parentheses is superseded by Amendment XIII.)

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2698103)

v.

JAMES MADISON, Secretary of State of the United States.

February, 1803

Mr. Chief Justice MARSHALL delivered the opinion of the court

At the last term, viz., December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, Esq. late attorney general of the United States, severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia. This motion was supported by affidavits of the following facts, that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of the United States, nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the District of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said President appointing them justices, &c.; and that the seal of the United States was in due form affixed to the said commissions by the Secretary of State; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison, as Secretary of State of the United States, at his office, for information whether the commissions were signed and sealed as aforesaid, that explicit and satisfactory information has not been given in answer to that inquiry, either by the Secretary of State or any officer in the department of state; that application has been made to the secretary of the senate for a certificate of the nomination of the applicants, and of the advice and consent of the senate who has declined giving such a certificate; whereupon a rule was laid to show cause on the 4th day of this term. This rule having been duly served,

Mr. Lee, in support of the rule, observed, that it was important to know on what ground a justice of peace in the District of Columbia holds his office and what procedures are necessary to constitute an appointment to an office not held at the will of the President. However notorious the facts are, upon the suggestion of which this rule has been laid, yet the applicants have been much embarrassed in obtaining evidence of them. Reasonable information has been denied at the office of the department of state. Although a respectful memorial has been made to the senate praying them to suffer their secretary to give extracts from their executive journals respecting the nomination of the applicants to the senate, and of their advice and consent to the appointments, yet their request bas been denied and their petition rejected. They have therefore been compelled to summon witnesses to attend in court, whose voluntary affidavits they could not obtain. Mr. Lee here read the affidavit of Dennis Ramsay, and the printed journals of the senate of 31 January 1803 respecting the refusal of the senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the department of state and not bound to disclose any facts relating to the business or transactions in the office.

Mr. Lee observed, that to show the propriety of examining the witnesses, he would make a few remarks on the nature of the office of Secretary of State. His duties are of two kinds, and he exercises his functions in two different capacities; as a public ministerial officer of the United States and as agent of the president. In the first his duty is to the United States or its citizens; in the other, his duty is to the President; in the one, he is an independent and an accountable officer; in the other he is dependent upon the President, is his agent, and accountable to him alone. In the former capacity he is compellable by mandamus to do his duty; in the latter he is not. This distinction is clearly pointed out by the two acts of congress upon this subject. The first was passed 27th July 1789, vol. 1, p. 369 entitled "An act for establishing an executive department to be denominated the department of foreign affairs." The first section ascertains the duties of the secretary so far as he is considered as a mere executive agent. It is in these words, "Be it enacted, &c. that there shall be an executive department to be denominated the department of foreign affairs and that there shall be a principal officer therein, to be called the secretary of the department of foreign affairs, who shall perform and execute such duties as shall from time to time be enjoined on, or intrusted to him by the President of the United States, agreeable to the constitution, relative to correspondences, commissions, or instructions to or with public ministers or consuls from the United States; or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers, or other foreigners, or to such other matters respecting foreign affairs as the President of the United States shall assign to the said department; and furthermore that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct."

The second section provides for the appointment of a chief clerk; the third section prescribes the oath to be taken which is simply, "well and faithfully to execute the trust committed to him;" and the fourth and last section gives him the custody of the books and papers of the department of foreign affairs under the old congress. Respecting the powers given, and the duties imposed, by this act, no mandamus will lie. The secretary is responsible only to the president. The other act of congress respecting this department was passed at the same session on the 16th September, 1789, vol. 1, p. 41, c. 14, and is entitled "An act to provide for the safe keeping of the acts, records, and seal of the United States, and for other purposes." The first section changes the name of the department and of the secretary, calling the one the department and the other the Secretary of State. The second section assigns new duties to the secretary in the performance of which it is evident, from their nature, he cannot be lawfully controlled by the President, and for the non-performance of which he is not more responsible to the President than to any other citizen of the United States. It provides that he shall receive from the President all bills, orders, resolutions and votes, of the senate and house of representatives which shall have been approved and signed by him, and shall cause them to be published, and printed copies to be delivered to the senators and representatives, and to the executives of the several states; and makes it his duty carefully to preserve the originals and to cause them to be recorded in books to he provided for that purpose. The third section provides a seal of the United States. The fourth makes it his duty to keep the said seal, and to make out and record, and to affix the seal of the United States to all civil comissions, after they shall have been signed by the President. The fifth section provides for a seal of office, and that all copies of records and papers in his office, authenticated under that seal, shall be as good evidence as the originals. The sixth section establishes fees for copies, &c. The seventh and last section gives him the custody of the papers of the office of the secretary of the old congress. Most of the duties assigned by this act are of a public nature and the secretary is bound to perform them; without the control of any person. The President has no right to prevent him from receiving the bills, orders, resolutions and votes of the legislature, or from publishing and distributing them, or from preserving or recording them. While the secretary remains in office, the President cannot take from his custody the seal of the United States, nor prevent him from recording and affixing the seal to civil commissions of such officers as hold not their offices at the will of the President, after he has signed them and delivered them to the secretary for that purpose. By other laws he is to make out and record in his office patents for useful discoveries, and patents of lands granted under the authority of the United States. ln the performance of all these duties he is a public ministerial officer of the United States. And the duties being enjoined upon him by law, he is, in executing them, uncontrollable by the President; and if he neglects or refuses to perform them, he may be compelled by mandamus in the same manner as other persons holding offices under the authority of the United States. The President is no party to this case. The secretary is called upon to perform a duty over which the President has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible. The secretary alone is the person to whom they are intrusted, and he alone is answerable for their due performance. The Secretary of State, therefore, being in the same situation, as to these duties, as every other ministerial officer of the United States, and equally liable to be compelled to perform them, is also bound by the same rules of evidence. These duties are not of a confidential nature, but are of a public kind, and his clerks can have no executive privileges. There are undoubtedly facts, which may come to their knowledge by means of their connection with the Secretary of State, respecting which they cannot be bound to answer. Such are the facts concerning foreign correspondences and confidential communications between the head of the department and the President. This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question. Suppose I claim title to land under a patent from the United States. I demand a copy of it from the Secretary of State. He refuses. Surely he may be compelled by mandamus to give it. But in order to obtain a mandamus, I must show that the patent is recorded in his office. My case would be hard indeed if I could not call upon the clerks in the office to give evidence of that fact. Again, suppose a private act of congress has passed for my benefit. It becomes necessary for me to have the use of that act in a court of law. I apply for a copy. I am refused. Shall I not be permitted, on a motion for a mandamus, to call upon the clerks in the office to prove that such an act is among the rolls of the office or that it is duly recorded? Surely it cannot be contended that although the laws are to be recorded, yet no access is to be had to the records, and no benefit to result therefrom.

The Court ordered the witnesses to be sworn and their answers taken in writing, but informed them that when the questions were asked they might state their objections to answering each particular question, if they had any.

Mr. Wagner being examined upon interrogatories, testified, that at this distance of time he could not recollect whether he had seen any commission in the office, constituting the applicants, or either of them, justices of the peace. That Mr. Marbury and Mr. Ramsay called on the Secretary of State respecting their commissions. That the secretary referred them to him; he took them into another room and mentioned to them, that two of the commissions had been signed, but the other had not. That he did not know that fact of his own knowledge, but by the information of others. Mr. Wagner declined answering the question "who gave him that information;" and the court decided that he was not bound to answer it, because it was not pertinent to this cause. He further testified that some of the commissions of the justices, but he believed not all, were recorded. He did not know whether the commissions of the applicants were recorded, as he had not had recourse to the book for more than twelve months past.

Mr. Daniel Brent testified, that he did not remember certainly the names of any of the persons in the commissions of justices of the peace signed by Mr. Adams; but he believed and was almost certain, that Mr. Marbury's and Col. Hooe's commissions were made out, and that Mr. Ramsay's was not; that he made out the list of names by which the clerk who filled up the commissions was guided; he believed that the name of Mr. Ramsay was pretermitted by mistake, but to the best of his knowledge it contained the names of the other two; he believed none of the commissions for justices of the peace, signed by Mr. Adams, were recorded. After the commissions for justices of the peace were made out, he carried them to Mr. Adams for his signature. After being signed, he carried them back to the secretary's office, where the seal of the United States was affixed to them. That commissions are not usually delivered out of the office before they are recorded; but sometimes they are, and a note of them only is taken, and they are recorded afterwards. He believed none of those commissions of justices were ever sent out, or delivered to the persons for whom they were intended; he did not know what became of them, nor did he know that they are now in the office of the Secretary of State.

Mr. Lincoln, attorney general, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing and that he might afterwards have time to determine whether he would answer. On the one hand he respected the jurisdiction of this court and on the other he felt himself bound to maintain the rights of the executive. He was acting as Secretary of State at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any fact which came officially to his knowledge while acting as Secretary of State.

The questions being written, were then read and handed to him. He repeated the ideas he had before suggested, and said his objections were of two kinds.

1st. He did not think himself bound to disclose his official transactions while acting as Secretary of State; and,

2d. He ought not to be compelled to answer anything which might tend to criminate himself.

Mr. Lee, in reply, repeated the substance of the observations he had before made in answer to the objections of Mr. Wagner and Mr. Brent. He stated that the duties of a Secretary of State were two-fold. In discharging one part of those duties he acted as a public ministerial officer of the United States, totally independent of the President, and that as to any facts which came officially to his knowledge, while acting in that capacity, he was as much bound to answer as a marshal, a collector, or any other ministerial officer. But that in the discharge of the other part of his duties, he did not act as a public ministerial officer, but in the capacity of an agent of the President, bound to obey his orders, and accountable to him for his conduct. And that as to any facts which came officially to his knowledge in the discharge of this part of his duties, he was not bound to answer. He agreed that Mr. Lincoln was not bound to disclose any thing which might tend to criminate himself.

Mr. Lincoln thought it was going a great way to say that every Secretary of State should at all times be liable to be called upon to appear as a witness in a court of justice, and testify to facts which eame to his knowledge officially. He felt himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive department; and hoped the court would give him time to consider of the subject.

The court said that if Mr. Lincoln wished time to consider what answers he should make they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; nor was he obliged to state any thing which would criminate himself; but that the fact whether such commissions had been in the office or not, could not be a confidential fact; it is a fact which all the world have a right to know. If he thought any of the questions improper, he might state his objections.

Mr. Lincoln then prayed time till the next day to consider of his answers under this opinion of the court.

The court granted it, and postponed further consideration of the cause till the next day.

At the opening of the court on the next morning, Mr. Lincoln said he had no objection to answering the questions proposed, excepting the last, which he did not think himself obliged to answer fully. The question was, what has been done with the commissions. He had no hesitation in saying that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the opinion of the court whether he was obliged to disclose what had been done with the commissions.

The court were of opinion that he was not bound to say what had become of them; if they never came to the possession of Mr. Madison, it is immaterial to the present cause what had been done with them by others.

To the other questions he answered that he had seen commissions of justices of the peace of the District of Columbia, signed by Mr. Adams, and sealed with the seal of the United States. He did not recollect whether any of them constituted Mr. Marbury, Col. Hooe, or Col. Ramsay, justices of the peace; there were, when he went into the office, several commissions for justices of peace of the district made out, but he was furnished with a list of names to he put into a general commission, which was done, and was considered as superseding the particular commissions; and the individuals whose names were contained in this general commission were informed of their being thus appointed. He did not know that any one of the commissions was ever sent to the person for whom It was made out, and did not believe that any one had been sent.

Mr. Lee then read the affidavit of James Marshall, who had been also summoned as a witness. It stated that on the 4th of March, 1801, having been informed by some person from Alexandria that there was reason to apprehend riotous proceedings in that town on that night, he was induced to return immediately home, and to call at the office of the Secretary of State, for the commissions of the justices of the peace; that as many as 12, he believed, commissions of justices for that county were delivered to him, for which he gave a receipt, which he left in the office. That finding he could not conveniently carry the whole, he returned several of them, and struck a pen through the names of those, in the receipt, which he returned. Among the commissions he returned, according to the best of his knowledge and belief was one for Col. Hooe, and one for William Harper.

Mr. Lee then observed, that having proved the existence of the commission, he should confine such further remarks as he had to make in support of the rule to three questions:

1st. Whether the Supreme Court can award the writ of mandamus in any case?

2d. Whether it will lie to a Secretary of State in any case whatever?

3d. Whether, in the present case, the court may award a mandamus to James Madison, Secretary of State?

The argument upon the first question is derived not only from the principles and practice of that country from whence we derive many of the principles of our political institutions, but from the constitution and laws of the United States.

This is the Supreme Court, and by reason of its supremacy must have the superintendance of the inferior tribunals and officers, whether judicial or ministerial. In this respect there is no difference between a judicial and a ministerial officer. From this principle alone the court of king's bench in England derives the power of issuing the writs of mandamus and prohibition. 3. Inst. 70, 71. Shall it be said that the court of king's bench has this power in consequence of its being the Supreme Court of judicature, and shall we deny it to this court which the constitution makes the Supreme Court? It is a beneficial, and a necessary power; and it can never be applied where there is another adequate, specific, legal remedy.

The second section of the third article of the constitution gives this court appellate jurisdiction in all cases in law and equity arising under the constitution and laws of the United States, (except the cases in which it has original jurisdiction,) with such exceptions, and under such regulations, as congress shall make. The term "appellate jurisdiction" is to be taken in its largest sense, and implies in its nature the right of superintending the inferior tribunals.

Proceedings in nature of appeals are of various kinds, according to the subject matter. 3 Bl. Com. 402. It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury, its proper redress. 3 Bl. Com. 109. There are some injuries which can only be redressed by a writ of mandamus and others by a writ of prohibition. There must, then, be a jurisdiction somewhere competent to issue that kind of process. Where are we to look for it but in that court which the constitution and laws have made supreme, and to which they have given appellate jurisdiction? Blackstone, vol. 3, p. 110, says that a writ of mandamus is "a command issuing in the king's name from the court of king's bench, and directed to any person, corporation or inferior court requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice. It is a writ of a most extensively remedial nature, and issues in all cases where the party has a right to have any thing done, and has no other specific means of compelling its performance."

In the Federalist, vol. 2, p. 239, it is said, that the word "appellate" is not to be taken in its technical sense, as used in reference to appeal in the course of the civil law, but in its broadest sense, in which it denotes nothing more than the power of one tribunal to review the proceedings of another, either as to law or fact, or both. The writ of mandamus is in the nature of an appeal as to fact as well as law. It is competent for congress to prescribe the forms of process by which the Supreme Court shall exercise its appellate jurisdiction, and they may well declare a mandamus to be one. But the power does not depend upon implication alone. It has been recognized by legislative provision as well as in judicial decisions in this court.

Congress, by a law passed at the very first session after the adoption of the constitution, vol. 1, p. 68, s. 13, have expressly given the Supreme Court the power of issuing writs of mandamus. The words are, "the Supreme Court shall also have appellate jurisdiction from the circuit courts, and courts of the several states, in the cases hereinafter specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

Congress is not restrained from conferring original jurisdiction in other cases than those mentioned in the constitution. 2 Dal. Rep. 298.

This court has entertained jurisdiction on a mandamus in one case, and on a prohibition in another. In the case of the United States v. Judge Lawrence, 3 Dal. Rep. 42, a mandamus was moved for by the attorney general at the instance of the French minister, to compel Judge Lawrence to issue a warrant against Captain Barre, commander of the French ship of war Le Perdrix, grounded on an article of the consular convention with France. In this case the power of the court to issue writs of mandamus was taken for granted in the arguments of counsel on both sides, and seems to have been so considered by the court. The mandamus was refused, because the case in which it was required was not a proper one to support the motion. In the case of the United States v. Judge Peters, a writ of prohibition was granted. 3 Dal. Rep. 121, 129. This was the celebrated case of the French corvette the Cassius, which afterwards became a subject of diplomatic controversy between the two nations. On the 5th Feb. 1794, a motion was made to the Supreme Court, in behalf of one John Chandler, a citizen of Connecticut, for a mandamus to the secretary of war, commanding him to place Chandler on the invalid pension list. After argument, the court refused the mandamus, because the two acts of congress respecting invalids did not support the case on which the applicant grounded his motion. The case of the United State v. Hopkins, at February term, 1794, was a motion for a mandamus to Hopkins, loan officer for the district of Virginia, to command him to admit a person to subscribe to the United States' loan. Upon argument, the mandamus was refused because the applicant had not sufficiently established his title. In none of these cases nor in any other, was the power of the court to issue a mandamus ever denied. Hence it appears there has been a legislative construction of the constitution upon this point and a judicial practice under it, for the whole time since the formation of the government.

2d. The second point is, can a mandamus go to a secretary of state in any case? It certainly cannot in all cases; nor to the president in any case. It may not be proper to mention this position; but I am compelled to do it. An idea has gone forth, that a mandamus to a secretary of state is equivalent to a mandamus to the President of the United States. I declare it to be my opinion, grounded on a comprehensive review of the subject, that the president is not amenable to any court of judicature for the exercise of his high functional, but is responsible only in the mode pointed out in the constitution. The secretary of state acts, as before observed, in two capacities. As the agent of the president, he is not liable to a mandamus; but as a recorder of the laws of the United States, as keeper of the Great Seal, as recorder of deeds of land, of letters patent, and of commissions, &c., he is a ministerial officer of the people of the United States. As such he has duties assigned him by law, in the execution of which he is independent of all control but that of the laws. It is true he is a high officer, but he is not above law. It is not consistent with the policy of our political institutions, or the manners of the citizens of the United States, that any ministerial officer having public duties to perform, should be above the compulsion of law in the exercise of those duties. As a ministerial officer he is compellable to do his duty, and if he refuses, he is liable to indictment. A prosecution of this kind might be the means of punishing the officer, but a specific civil remedy to the injured party can only be obtained by a writ of mandamus. If a mandamus can be awarded by this court in any case, it may issue to a secretary of state; for the act of congress expressly gives the power to award it, "in cases warranted by the principles and usages of law, to any persons holding offices under the authority of the United States."

Many cases may be supposed, in which a secretary of state ought to be compelled to perform his duty specifically. By the 5th and 6th sections of the act of congress, vol. 1, p. 43, copies under seal of the office of the department of state are made evidence in courts of law, and fees are given for making them out. The intention of the law must have been, that every person needing a copy should be entitled to it. Suppose the secretary refuses to give a copy; ought he not to be compelled? Suppose I am entitled to a patent for lands purchased of the United States; it is made out and signed by the president, who gives a warrant to the secretary to affix the great seal to the patent; he refuses to do it; shall I not have a mandamus to compel him? Suppose the seal is affixed, but the secretary refuses to record it; shall he not be compelled? Suppose it recorded, and he refuses to deliver it; shall I have no remedy?

In this respect there is no difference between a patent for lands, and the commission of a judicial officer. The duty of the secretary is precisely the same.

Judge Paterson inquired of Mr. Lee whether he understood it to be the duty of tho secretary to deliver a commission, unless ordered to do so by the president.

Mr. Lee replied, that after the president has signed a commission for an office not held at his will, and it comes to the Secretary to be sealed, the president has done with it, and nothing remains, but that the secretary perform those ministerial acts which the law imposes upon him. It immediately becomes his duty to seal, record, and deliver it on demand. ln such a case the appointment becomes complete by the signing and sealing; and the secretary does wrong if he withbolds the commission.

3d. The third point is, whether, in the present case, a writ of mandamus ought to be awarded to James Madison, secretary of state.

The justices of the peace in the District of Columbia are judicial officers, and hold their office for five years. The office is established by the act of congress passed the 27th of February, 1801, entitled "An act concerning the District of Columbia," c. 86, s. 11 and 14, p. 271, 273. They are authorized to hold courts, and have cognizance of personal demands of the value of 20 dollars. The act of May 3d, 1802, c. 52, s. 4, considers them as judicial officers and provides the mode in which execution shall issue upon their judgments. They hold their offices independent of the will of the president. The appointment of such an officer is complete when the president has nominated him to the senate, and the senate having advised and consented, and the president has signed the commission, and delivered it to the secretary to be sealed. The president has then done with it; it becomes irrevocable. An appointment of a judge once completed, is made forever. He holds under the constitution. The requisites to be performed by the secretary are ministerial, ascertained by law, and he has no discretion, but must perform them; there is no dispensing power. In contemplation of law they are as if done.

These justices exercise part of the judicial power of the United States. They ought, therefore, to be independent. Mr. Lee begged leave again to refer to the Federalist, vol. 2, Nos. 78 and 79, as containing a correct view of his subject. They contained observations and ideas which he wished might be generally read and understood. They contained the principles upon which this branch of our constitution was constructed. It is important to the citizens of this district that the justices should be independent; almost all the authority immediately exercised over them is that of the justices. They wish to know whether the justices of this district are to hold their commissions at the will of a secretary of state. This cause may seem trivial at first view, but it is important in principle. It is for this reason that this court is now troubled with it. The emoluments, or the dignity of the office, are no objects with the applicants. They conceive themselves to be duly appointed justices of the peace and they believe it to be their duty to maintain the rights of their office, and not to suffer them to be violated by the hand of power. The citizens of this district have their fears excited by every stretch of power by a person so high in office as the secretary of state.

It only remains now to consider whether a mandamus, to compel the delivery of a commission by a puplic ministerial officer, is one of "the cases warranted by the principles and usages of law."

It is the general principle of law that a mandamus lies, if there be no other adequate, specific, legal remedy. 3 Burr. 1267. King v. Barker at al. This seems to be the result of a view of all cases on the subject.

The case of Rex v. Borough of Midhurst, 1 Wils. 283, was a mandamus to compel the presentment of certain conveyances to purchasers of burgage tenements, whereby they would be entitled to vote for members of parliament. In the case of Rex v. Hay, 1 W. Bl. Rep. 640, a mandamus issued to admit one to administer an estate.

A mandamus gives no right, but only puts the party in a way to try his right. Sid. 286.

It lies to compel a ministerial act which concerns the public; 1 Wils. 283. 1 Bl. Rep. 640; although there be a more tedious remedy. Str. 1082. 4 Burr. 2188. 2 Burr. 1046. So if there be a legal right, and a remedy in equity. 3 Term Rep. 652. A mandamus lies to obtain admission into a trading company. Rex. v. Turkey Company, 2 Burr. 1000. Carth. 448. 5 Mod. 402. So it lies to put the corporate seal to an instrument. 4 Term Rep. 699. To commissioners of the excise to grant a permit. 2 Term Rep. 381. To admit to an office. 3 Term Rep. 675. To deliver papers which concern the public. 2 Sid. 31. A mandamus will sometimes lie in a doubtful case, I Lev. 113, to be further considered on the return. 2 Lev. 14. 1 Sid. 169.

It lies to be admitted a member of a church. 3 Burr. 1265, 1043.

The process is as ancient as the time of Edw. II. 1 Lev. 23.

The first writ of mandamus is not peremptory, it only commands the officer to do the thing or show cause why he should not do it. If the cause returned be sufficient, there is an end of the proceeding; if not, a peremptory mandamus is then ordered.

It is said to be a writ of discretion. But the discretion of a court always means a sound, legal discretion, not an arbitrary will. If the applicant makes out a proper case, the courts are bound to grant it. They can refuse justice to no man.

On a subsequent day, and before the court had given an opinion, Mr. Lee read the affidavit of Hazen Kimball, who had been a clerk in the office of the Secretary of State, and had been to a distant part of the United States, but whose return was not known to the applicant till after the argument of the case.

It stated that on the third of March, 1801, he was a clerk in the department of state. That there were in the office, on that day, commissions made out and signed by the president, appointing William Marbury a justice of peace for the county of Washington; and Robert T. Hooe a justice of the peace for the county of Alexandria, in the District of Columbia.

Afterwards, on the 24th February, the following opinion of the Court was delivered by the Chief Justice.

Opinion of the court.

At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia.

No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the court is founded.

These principles have been, on the side of the applicant very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument.

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1st. Has the applicant a right to the commission he demands?

2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3d. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is,

1st. Has the applicant a right to the commission he demands?

His right originates in an act of congress passed in February, 1801, concerning the District of Columbia.

After dividing the district into two counties, the 11th section of this law enacts, "that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years.

It appears, from the affidavits, that in compliance with this law, a commission for William Marbury, as a justice of the peace for the county of Washington, was signed by John Adams, then President of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.

In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, become his property.

The 2d section of the 2d article of the constitution declares that "the President shall nominate, and, by and with the advice and consent of the senate shall appoint, ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for."

The 3d section declares, that "he shall commission all the officers of the United States."

An act of congress directs the secretary of state to keep the seal of the United States, "to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the president, by and with the consent of the senate, or by the president alone; provided, that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States."

These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations:

1st. The nomination. This is the sole act of the president, and is completely voluntary.

2d. The appointment. This is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate.

3d. The commission. To grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the constitution. "He shall," says that instrument, "commission all the officers of the United States."

The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission will be rendered more apparent by averting to that provision in the second section of the second article of the constitution, which authorizes congress "to vest, by law, 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;" thus contemplating cases where the law may direct the president to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused.

Although that clause of the constitution which requires the president to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed, remains the same as if in practice the president had commissioned officers appointed by an authority other than his own.

It follows, too, from the existence of this distinction, that if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it.

These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration.

This is an appointment made by the President, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment, though conclusive evidence of it.

But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him.

Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the president was performed, or, at furthest, when the commission was complete.

The last act to be done by the president is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being so far as respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed converting the department of foreign affairs into the department of state. By this act it is enacted, that the secretary of state shall keep the seal of the United States, "and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President;" "Provided, that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States; nor to any other instrument or act, without the special warrant of the president therefor."

The signature is a warrant for affixing the great seal to the commission: and the great seal is only to he affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the presidential signature.

It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made.

The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course as accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.

If it should be supposed, that the solemnity of affixing the seal is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of the government. All that the executive can do to invest the person with his office is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others.

After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine.

Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed.

In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential.

This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded, that the principle claimed for its support is established.

The appointment being, under the constitution, to be made by the president personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the president also. It is not necessary that the delivery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the Secretary of State since it directs the secretary to affix the seal to the commission after it shall have been signed by the President. If, then, the act of delivery be necessary to give validity to the commission, it has been delivered when executed and given to the Secretary for the purpose of being sealed, recorded, and transmitted to the party.

But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidence of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the President, and the seal of the United States, are those solemnities. This objection, therefore, does not touch the case.

It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff.

The transmission of the commission is a practice directed by convenience, but not by law. It cannot, therefore, be necessary to constitute the appointment which must precede it, and which is the mere act of the President. If the executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post office and reach him in safety, or to miscarry.

It may have some tendency to elucidate this point, to inquire whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted but that a copy from the record of the office of the Secretary of State would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed and that the appointment had been made, but not that the original had been transmitted. If indeed it should appear that the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labor of inserting it in a book kept for that purpose may not have been performed.

In the case of commissions, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded.

A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law?

Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment.

lf the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and he, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept, but neither the one nor the other is capable of rendering the appointment a non-entity.

That this is the understanding of the government, is apparent from the whole tenor of its conduct.

A commission bears date, and the salary of the officer commences, from the appointment; not from the transmission or acceptance of his commission. When a person appointed to any office refuses to accept that office, the sucessor is nominated in the place of the person who has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy.

It is, therefore, decidedly the opinion of the court, that when a commission has been signed by the President the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State.

Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable, and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.

The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the President, and sealed by the Secretary of State, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

This brings us to the second inquiry; which

2d. If he has a right, and that right has been violated, do the laws of this country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.

"In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded."

And afterwards, p. 109, of the same vol. he says, "I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress."

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.

It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt it from legal investigations, or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents itself is, whether this can be arranged with that class of cases which come under the description of damnum absque injuria -- a loss without an injury.

This description of cases never has been considered, and it is believed never can be considered, as comprehending offices of trust, of honor, or of profit. The office of justice of peace in the District of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of congress, and has been secured, so far as the laws can give security, to the person appointed to fill it, for five years. It is not, then, on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy.

Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy?

That there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case, is not to be admitted.

By the act concerning invalids, passed in June, 1704, vol. 3, p. 112, the Secretary of War is ordered to place on the pension list all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise term, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?

Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, vol. 3, p. 265, says, "but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice."

By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river, (vol. 3, p. 299,) the purchaser, on paying his purchase money, becomes completely entitled to the property purchased, and on producing to the Secretary of State the receipt of the treasurer upon a certificate required by the law, the President of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the Secretary of State, and recorded in his office. If the Secretary of State should choose to withhold this patent; or, the patent being lost, should refuse a copy of it; can it be imagined that the law furnishes to the injured person no remedy?

It is not believed that any person whatever would attempt to maintain such a proposition.

It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.

If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.

In some instances there may be difficulty in applying the rule to particular enses; but there cannot, it is believed, be much difficulty in laying down the rule.

By the constitution of the United States, the President is invested with certain important political powers in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by laws and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.

If this be the rule, let us inquire how it applies to the case under the consideration of the court.

The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They can not be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source.

The question whether a right has vested or not, is, on its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defence had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete and evidenced, was when, after the signature of the President, the seal of the United States was affixed to the commission.

It is, then, the opinion of the Court,

1st. That by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the county of Washington, in the District of Columbia; and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years.

2d. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be inquired whether,

3d He is entitled to the remedy for which he applies. This depends on,

1st. The nature of the writ applied for; and,

2d. The power of this court.

1st. The nature of the writ.

Blackstone, in the 3d volume of his Commentaries, page 110, defines a mandamus to be "a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, t

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2700826)

I can say this, as I used to write for them.

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2696125)

shackletonian@gmail.com

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2700101)

Comparison of readership and effect of Paine's 'Common Sense', which the author says was owned by 5% of the colonists, to readership and effect of Fox News, which, the author fails to mention, is viewed by more people than the other major tv news sources. The author then claims that the American revolution "did very little to change the life of the average colonist."

http://www.michigandaily.com/vnews/display.v/ART/2005/05/09/427f9c4d56555

Mara Gay: Tell it like it is

By Mara Gay: Common Sense

May 09, 2005

In 1775, one in 20 American colonists owned a copy of Thomas Paine’s “Common Sense.” The pamphlet is credited with using clear and direct language to convince the average colonist that not only was it in his favor to seek independence from Great Britain, but it was his sacred right and civic responsibility to do so.

The irony, of course, is that the American Revolution did very little to change the life of the average colonist. But the same thing that worked for Paine does wonders for pundits like Sean Hannity and their conservative agendas. In fact, if Paine were around today, he might very well be on Fox News, leading his faithful flock to a revolution that doesn’t necessarily advance the interests of the flock at all.

Not unlike Paine, today’s conservatives appeal directly to the morality of their audience. The very success of the deceptively named Michigan Civil Rights Initiative, for example, which seeks to end “preference” based on race and gender, banks on its supporters’ assumption that Michigan voters fundamentally support the concept of civil rights.

Instead of simply expressing outrage at the way in which these progressive terms have been hijacked by their rightful owners and used to roll back decades of positive reform, liberals had better work to chip away at the moral monopoly they have allowed conservatives to amass.

If liberals were able to market their ideas as effectively as Thomas Paine and Sean Hannity, today’s political landscape might be very different. There is a reason it took the right wing some 20 years to reclaim the White House from the debauchery of liberalism. It is the conservative agenda that is out of touch with the values of the average American; it took billions of dollars, quite a few think tanks, the general disintegration of responsible journalism and two elections riddled with voter fraud to win the Bush “mandate” — a whopping 51 percent of the vote.

It must be frightening for Republicans to ponder what might happen if Democrats wise up and begin to reframe the terms of the debate. Why not challenge the moral high ground of the conservatives, for example? Issues like health care, social security and education must be presented as the crises of morality that they are.

Last November, the Thomas More Law Center marketed Proposal 2, an amendment to the state constitution banning gay marriage or “similar union for any purpose,” as simply a way to protect the sanctity of marriage and strengthen family values. Opponents of Proposal 2 could have restructured the conversation, reminding the public that bigotry and intolerance are not family values at all. They could have encouraged Michiganders to demand to know how legalized discrimination would help them find decent-paying jobs in a state whose unemployment rate is tied for last place with Alaska’s. Instead, they insisted that the language in the proposal was so vague it might be used to impede upon even heterosexual rights, displaying their usual reluctance to present straightforward moral arguments for causes that require a direct appeal to a voter’s sense of values and social justice.

The same kind of ineffective semantic jargon is currently being used to fight MCRI. University President Mary Sue Coleman is probably right when she says the language in MCRI is likely to have a devastating effect on women in higher education. But to be frank, if affirmative action were simply about the advancement of white women, there would be little room for controversy. Voters will decide the fate of affirmative action based upon what lies at the heart of the issue — race. The campaign to end affirmative action must be exposed for what it truly is: a disturbing example of the insidiousness of the very racism affirmative action works to counteract.

Now that I am back home in the true-blue state of New York, the full horror of the past year’s political happenings has begun to percolate in my mind. But after some liberal soul-searching, the lesson Thomas Paine has to teach us is clearer than ever: It’s not about the message, it’s about the delivery. Liberals must understand that there is no need to market ideas with convoluted arguments of semantics when they are genuinely beneficial to those they’re being sold to. After all, demanding real and positive change is not revolutionary to most Americans — it’s common sense.

Gay is a member of the Daily’s editorial board. She can be reached at maracl@umich.edu.

(http://www.autoadmit.com/thread.php?thread_id=168661&forum_id=2#2744408)