Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P45 docx

permit the U.S. government to direct commu- nications service providers to assist in the warrantless gathering of foreign intelligence when it involved targeted third persons, such as the provider’s customers, reasonably believed to be located outside the United States. The act expired in February 2008, and the provisions were repealed in July 2008 when Congress passed new amendments to FISA. These amendments granted the telecommunication companies IMMUNITY from civil suits for coop- erating with the government and expanded the NSA Eavesdropping: National Security v. Civil Liberties F ollowing the terrorist attacks on SEPTEMBER 11, 2001, the Bush ad- ministration decided to have the Na- tional Security Agency (NSA) conduct domestic ELECTRONIC SURVEILLANCE of ter- rorist suspects without first obtaining a warrant from the Foreign Intelligence Surveillance Court (FISC), as required by the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C.A. §§ 1800–1829) or going to Congress and asking for this authority. The administration justified the program as being vital to the prevention of terrorist attacks on U.S. soil. Following the disclosure of the program in 2005 by the New York Times, President GEORGE W. BUSH stated that “If al-Qaeda is calling someone in America, we want to know what they’re saying on the call.” Critics rejected the use of the program, contending that it violated the Constitution’ s SEPARATION OF POWERS, the Fourth Amendment’ s prohibition on illegal searches and seizures, and the FISA act. Though Congress enacted a law that permitted warrantless wiretapping, the debate illustrates the ongoing tension between national security and individual civil liberties. The Bush administration cited the need for swift action as justification for avoiding the warrant requirement when wiretapping the communications of TER- RORISM suspects to and from the United States. Former attorney general JOHN ASHCROFT argued that the law passed one week after September 11, 2001, the Authorization for Use of Military Force (AUMF), gave blanket powers to the president to use all necessary force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Though warrantless wiretapping was not explicitly mentioned, he believed the law allowed the president to listen to phone conversations of people living in the United States when they talked to terrorist suspects abroad. Invoking national secu- rity is a powerful argument that the courts give deference to in most cases. The SUPREME COURT,inHamdi v. Rumsfeld (542 U.S. 507,124 S. Ct. 2633, 159 L. Ed. 2d 578 [2004]), accorded the president broad powers under AUMF, suggesting that wiretapping U.S. citizens was legal. Supporters of the secret wiretapping program contend that FISA was written before the advent of modern communica- tions technology and high-speed compu- ters. A 1978 law that relied on slow and cumbersome information-gathering tech- niques had no place in the twenty-first century. In a 2007 interview, former director of National Intelligence (DNI) Michael McConnell said the law “inhibits or prevents us from being successful.” Congress acknowledged as much when it enacted in 2007 an amendment to FISA that was known as the Protect America Act (PAA). This amendment authorized the U.S. government to direct communica- tions service providers to assist in the warrantless gathering of foreign intelli- gence when it involved targeted third persons, such as the provider’ scustomers, reasonably believed to be located outside the United States. The act expired in February 2008, and the provisions were repealed in July 2008. However, a legal controversy over the constitutionality of the act did not come to a conclusion until August 2008, when the FISC ruled on the matter. Publication of the heavily redacted version did not occur until August 2009. Under the 2007 law, the DNI and the attorney general were permitted to au- thorize, for periods of up to one year, the acquisition of information on foreign agents reasonably believed to be outside the United States if the acquisition met certain criteria. These criteria included reasonable procedures for ensuring the targeted person was outside the United States, the assistance of communications service providers to acquire information from their customers, and a significant purpose of the surveillance was to obtain foreign intelligence information. Based on this authorization, the DNI and attorney general were permitted to issue directives to the providers, detailing the assistance needed to acquire the information. One communication provider whose identity has been concealed, refused t o cooperate, challenging the legality of the directives. The government then asked the FISC to compel compliance. A FISC judge ruled the directives lawful and ordered the company to comply. The company t hen appealed to a three-judge panel of the FISC but asked that Judge Walton stay his compliance order while the case was under review. Walton refused, and the company complied under the threat of civil CONTEMPT. The appeals court ruled unanimously in favor of the government. Judge Bruce Selya from the First Circuit Court of Appeals, serving as chief judge, issued the ruling. The central issue was whether the FOURTH AMENDMENT barred warrantless surveillance. The company made two claims that were limited to the harm that may be inflicted upon U.S. persons: GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 428 WIRETAPPING time to obtain a warrant for warrantless wiretaps, from 48 hours to seven days. FURTHER READINGS Adams, James A., and Daniel D. Blinka. 2003. Electronic Surveillance: Commentaries and Statutes. Notre Dame, Ind.: National Institute for Trial Advocacy. Bazan, Elizabeth, ed. 2008 The Foreign Intelligence Surveil- lance Act: Overview and Modifications. Hauppage, New York: Nova Science Publishers. Volkman, Earnest. 2008. The History of Espionage: The Clandestine World of Surveillance, Spying and Intelli- gence, from Ancient Times to the Post-9/11 World. London: Carlton Publishing Group. (1) the government, in issuing its direc- tives, must comply with the warrant clause of the Fourth Amendment; and (2) even if a foreign intelligence exception exists that makes a warrant unnecessary, the surveillance mandated by the direc- tives is unreasonable. Judge Selya set a high bar for the company to prevail: It had to prove more than a theoretical risk that the PAA could on certain facts produce unconstitutional applications. The company had to show that the PAA was unconstitutional as implemented. The court found no merit in the argument that there is no foreign intelli- gence exception to the Fourth Amend- ment’ s requirement that searches and seizures must be authorized by a warrant signed by a judge. Though the Supreme Court has never explicitly recognized such an exception, it has made excep- tions outside the foreign intelligence area. In so-called special needs cases, the Court has deemed a warrant unnec- essary when the purpose behind the governmental action goes beyond rou- tine law enforcement and requiring a warrant would materially interfere with the accomplishment of the government action. Judge Selya applied the reasoning in these cases to the surveillance carried out through the PAA. Requiring a warrant would, with a “high degree of probability hinder the government’s ability to collect time-sensitive informa- tion” and would impede vital national security interests. The Court rejected the claim that such warrantless surveillance is unrea- sonable under the Fourth Amendment. Judge Selya stated that the government did not have “carte blanche.” The court was required to look at the totality of the circumstances and balance the interests at stake. The government’ s interest in national security was “of the highest order of magnitude.” As to the “parade of horribles” presented by the company, the court concluded that it had failed to present any evidence of “actual harm, any egregious risk of error, or any broad potential for abuse.” Fears that placing discretion entirely in the hands of the executive branch would invite abuse were off the mark as well. There was no evidence that the government ’ s proce- dures to prevent abuse were implemen- ted in bad faith. Therefore, the balancing of interests fell decidedly on the side of the government and the PAA. Critic s of the secret program, the PAA, and the FISC decision make a number of arguments as to why national sec urity should trump civil liberties. They note the Supreme Court’ sholding in United States v. United States District Court (407 U.S. 29 7, 9 2 S. C t. 2 125, 32 L. Ed. 2d 752 [1972]), which is com- monly known as the Keith case. In its unanimous ruling, the Court stated that a warrant needed to be obtained before beginning electronic surveillance even if domestic security issues were in- volved. Moreover, the history of the FISC demonstrates that the court almost always grants a warrant r equest. To deal with exigent circumst ances, where the government does not have time to obtain a FISA warrant, the court can grant warrants up to 72 ho urs after the search. Even such backdating, critics argue, puts the specific action on the record. The FISA was not an impedi- ment after September 11, 2001, and the powers granted the president by AUMF did not explicitly nullify FISA requirements. The question of preserving civil liberties has been a paramount concern for groups such as the AMERICAN CIVIL LIBERTIES UNION (ACLU) and the ELEC- TRONIC FRONTIER FOUNDATION (EFF). These groups believe the Fourth Amendment’s ban against illegal searches and seizures is premised on the need for law enforce- ment to obtain a SEARCH WARRANT from a court. The possibility that the government could abuse its authority in this area and become “Big Brother” is also a troubling prospect, as the NSA’s actions are shrouded in secrecy. Critics believe that relying on trust is no substitute for constitutional protections. The EFF filed a CLASS ACTION lawsuit against AT&T on January 31, 2006, accusing the TELECOMMUNICATIONS com- pany of violating the law and the privacy of its customers by collaborating with the NSA in its efforts to wiretap and data- mine the communications of U.S. resi- dents. In May 2006, many other cases were filed against a number of telecom- munications companies. All the cases were consolidated and heard in a federal court in San Francisco. In June 2009 the court dismissed the cases, citing the 2008 FISA Amendments Act (FISAAA), which gave IMMUNITY to the telecommunications company for participating in the war- rantless NSA program. The FISAAA allowed for the dismissal of the lawsuits if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Then attorney general MICHAEL MUKASEY filed that classified certification with the court in September 2008. The plaintiffs appealed this ruling to the Ninth Circuit Court of Appeals, with a ruling expected in 2010. FURTHER READINGS Adams, James A., and Daniel D. Blinka. 2003. Electronic Surveillance: Commentaries and Statutes. Notre Dame, Ind.: National Institute for Trial Advocacy. Bazan, Elizabeth, ed. 2008. The Foreign Intelli- gence Surveillance Act: Overview and Modifications. Hauppage, N.Y.: Nova Science. Volkman, Earnest. 2008. The History of Espio- nage: The Clandestine World of Surveil- lance, Spying and Intelligence, from Ancient Times to the Post-9/11 World. London: Carlton Publishing Group. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WIRETAPPING 429 CROSS REFERENCES Pen Register; Search and Seizure; Telecommunications. v WIRT, WILLIAM William Wirt served as U.S. attorney general from 1817 to 1829, the longest tenure in U.S. history. Wirt is recognized as one of the most important holders of that office, as he increased its prestige, established administrative record keeping, and defined the functions and author- ity of the attorney general that have remained unchanged. Wirt was born on November 8, 1772, in Bladensburg, Maryland. He was educated at private schools and for a time worked as a private tutor. Wirt studied law and became a member of the Virginia bar in 1792. Though he established a private practice and showed remarkable talent as a lawyer, he was drawn into Virginia poli tics. He served as clerk of the Virginia House of Delegates in 1800 and in 1802 was chancellor of the eastern district of Virginia. Wirt’s political involvem ent led to friendships with several prominent Virginians, including THOMAS JEFFERSON, JAMES MADISON, and JAMES MONROE . In 1807 President Jefferson appointed Wirt prosecuting attorney in the TREASON trial of AARON BURR. Though Burr was acquitted of all charges, Wirt had entered the national political arena. He continued to practice law, but he was also a Latin scholar and an author. In 1817 he published Sketches of the Life and Character of Patrick Henry. In that same year President Monroe appointed Wirt attorney general. When Wirt entered his office for the first time he discovered that none of his eleven predecessors had left any books or records to document what they had done. Appalled at this lack of institutional memory, Wirt announced that he would keep a regular record of every official opinion he rendered for the use of his successors. This collection became known as the Official Opinions of the Attorney General,whichhasbeenmain- tained by every succeeding attorney general. Wirt’s most important contribution as attorney general was to define what activities his office could lawfully engage in and what advice it could give. Until Wirt’s administration, the attorney ge neral had routinely advised Congress and had advised EXECUTIVE BRANCH department heads in matters of policy. After ▼▼ ▼▼ William Wirt 1772–1834 1750 1800 1825 1850 1775 ❖ ◆ ◆ ◆ ❖ 1834 Died, Washington, D.C. 1829 Retired to private practice in Baltimore, Md. 1824 Argued Gibbons v. Ogden before the Supreme Court 1817–29 Served as U.S. attorney general under Monroe and Adams ◆ ◆◆ 1819 Argued McCulloch v. Maryland before the Supreme Court 1807 Served as prosecuting attorney in Aaron Burr's treason trial 1800 Appointed clerk of the Va. House of Delegates 1792 Admitted to Va. bar 1772 Born Bladensburg, Md. 1775–83 American Revolution 1812–14 War of 1812 William Wirt. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 430 WIRT, WILLIAM reviewing the JUDICIARY ACT OF 1789, Wirt noted that the attorney general had no authority to advise Congress, and that the advice the attorney general could give to the president and department heads must be confined to matters of law. Therefore, Wirt ceased issuing opinions to Congress and only gave legal advice, policies that his successors have, with few deviations, honored. During his long service, Wirt argued numerous cases before the U.S. Supreme Court, including the landmark cases of MCCULLOCH V. MARYLAND, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819) and GIBBONS V. OGDEN, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824). In McCulloch the Court affirmed the power of Congress to charter a national bank and denied states the right to tax a federal instrumentality. In Gibbons the court upheld the right of the federal government to control matters of interstate commerce. The case involved the authority of a state to grant private individuals monopolies to operate steamboats in NAVIGABLE WATERS over which the federal government had authority. The Court held that the U.S. Constitution’s COMMERCE CLAUSE empowered Congress to regulate inter- state commerce, establishing a precedent that had far-reaching effects in the economic expan- sion of the nineteenth century. Wirt served in both Monroe administra- tions and in the administration of President JOHN QUINCY ADAMS. He left office in 1829 and moved to Baltimore, where he practiced law. He died on February 18, 1834, in Washington, D.C. FURTHER READINGS Boles, John, ed. 1971. The William Wirt Papers—a Guide to the Microfilm Edition of the William Wirt Papers. Baltimore: Maryland Historical Society. Jabour, Anya. 1998. Marriage in the Early Republic: Elizabeth and William Wirt and the Companionate Ideal. Baltimore, Md: Johns Hopkins Univ. Press. Justice Department. Attorneys General of the United States, 1789–1985. Washington, D.C.: U.S. Government Print- ing Office. Strahan, Thomas W. “William Wirt: Orphan to Attorney General.” Quarterly-Christian Legal Society 7 (fall). CROSS REFERENCE Burr, Aaron, “United States v. Aaron Burr” (Sidebar). v WISDOM, JOHN MINOR John Minor Wisdom, a judge of the U.S. Court of Appeals for the Fifth Circuit, was one of the most influential jurists of the CIVIL RIGHTS era. He was prominent among southern judges who endured political pressures and physical threats for enforcing BROWN V. BOARD OF EDUCATION and for making other rulings that advanced the fight for equality under the law. (Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 [1954], was the landmark U.S. Supreme Court case that held racial SEGREGATION in public education to be against the law.) Wisdom and his prominent colleagues on the Fifth Circuit court (Judges John R. Brown of Houston, Texas, Richard T. Rives of Montgom- ery, Alabama, and ELBERT PARR TUTTLE of Atlanta, Georgia) were known derisively as “The Four” by those who disapproved of their work. Under their gavels, JIM CROW LAWS were declared unconstitu- tional, African Americans were granted VOTING RIGHTS , RACIAL DISCRIMINATION in jury selection was curbed, and state COLLEGES AND UNIVERSITIES were desegregated. Though proud of his work, Wisdom was quick to point out that he was just one of many judges responsible for advancing the fight for civil rights in the old South. And in many ▼▼ ▼▼ John Minor Wisdom 1905–1999 19001900 19501950 19751975 20002000 19251925 ❖ ❖ 1905 Born, New Orleans, La. 1929 Graduated from Tulane Univ. Law School; admitted to La. bar 1930 Started private law practice 1942–45 Served in Army Air Force 1954 Brown v. Board of Education decided by U.S. Supreme Court 1957 Appointed judge of Fifth Circuit Court of Appeals 1977 Became senior judge 1993 Received Presidential Medal of Freedom, nation's highest civilian honor 1996 Received America Bar Association Medal 1999 Died, New Orleans, La. 1914–1918 World War I 1939–1945 World War II 1950–1953 Korean War 1961–1973 Vietnam War ◆◆ ◆ ◆◆◆ ◆ 1998–99 President William J. Clinton impeached in House, acquitted in Senate GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WISDOM, JOHN MINOR 431 ways, he was an unlikely individual to figure so prominently in the cause. Born in New Orleans, Louisiana, on May 17, 1905, Wisdom was a product of the old South, and he grew up accustomed to the privileges and prejudices of the white aristocracy. His father, Mortimer Norton Wisdom, had been a pall- bearer for General Robert E. Lee. His mother, Adelaide Labatt Wisdom, limited her son’s youthful associations to people of his own social class and standing. It was not until Wisdom enrolled at Virginia’s Washington and Lee University in 1921 that he was exposed to a more diverse cross section of the population and began to develop a broader view of the world. He received his bachelor of arts degree in 1925. Wisdom entered the law school at Tulane University in 1925. He completed his studies in the spring of 1929 and was admitted to the Louisiana bar the same year. After law school, he joined several classmates to establish a New Orleans law practice. The firm of Wisdom, Stone, Pigman, and Benjamin endured in one variation or another for 30 years. Wisdom established another enduring union on October 24, 1931, when he married Bonnie Stewart Mathews. They had three children. By the late 1930s Wisdom was combining careers in law and education. He was named adjunct professor of law at Tulane University law school in 1938 (a position he held until 1957). It was during this period that Wisdom began to see the importance of providing equal educational opportunities to all members of society. His views were affirmed during the WORLD WAR II years when he worked closely, for the first time, with poor and undereducated southern whites and blacks. Wisdom served in the U.S. Army Air Force from 1942 to 1946. Before the war’s end, he had attained the rank of lieutenant colonel and been awarded the Legion of Merit. After World War II, Wisdom returned to Louisiana and the practice of law. He also entered the political arena. By 1952 he was a member of the Republican National Committee for Louisiana and was sometimes called the man who made DWIGHT D. EISENHOWER president of the United States. At the 1952 Republican National Convention in Chicago, Wisdom led a fight to have Louisiana’s Eisenhower delegates seated in place of those committed to Ohio Senator Robert A. Taft. Wisdom’s success was the turning point in Eisenhower’s bid for the nomination. In 1954 Eisenhower named Wisdom to the President’s Commission on Anti-Discrimination in Government Contracts. His work on the commission earned him national respect, and in 1957 he was appointed, again by Eisenhower, to the U.S. Court of Appeals for the Fifth Circuit. Wisdom served the court and the nation for more than 30 years, as a judge from 1957 to 1977, and then as a senior judge. Wisdom assumed senior, or semi-retired, status on January 15, 1977. In his years on the bench Wisdom partici- pated in deciding almost 5,000 cases, signed 1,000 published majority opinions, and wrote nearly as many unnumbered per curiams and unpublished opinions. Colleagues stated that his place in history was assured by his unique ability to clearly express the court’s opinions. Many of Wisdom’s opinions defined civil rights law in the United States. In Meredith v. Fair, 298 F.2d 696 (1962), Wisdom desegregated the University of Mississippi. In United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), he affirmed the duty of federal courts to protect federally guaranteed rights and eloquently discussed the DISFRANCHISEMENT of African Americans in Louisiana. And in Dombrowski v. Pfister, 227 F. Supp. 556 (E.D. La. 1964), rev’ d, 380 U.S. 479 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), the U.S. Supreme Court upheld his powerful dissent and enjoined the state of Louisiana from using legislative and judicial John Wisdom. AP IMAGES TO AVOID CONFLICT WITH THE EQUAL PROTECTION CLAUSE , A CLASSIFICATION THAT DENIES A BENEFIT , CAUSES HARM , OR IMPOSES A BURDEN MUST NOT BE BASED ON RACE . I N THAT SENSE, THE CONSTITUTION IS COLOR BLIND .BUT THE CONSTITUTION IS COLOR CONSCIOUS TO PREVENT DISCRIMINATION BEING PERPETUATED AND TO UNDO THE EFFECTS OF PAST DISCRIMINATION .THE CRITERION IS THE RELEVANCY OF COLOR TO A LEGITIMATE GOVERNMENTAL PURPOSE . —JOHN MINOR WISDOM GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432 WISDOM, JOHN MINOR processes to harass civil rights leaders with unwarranted prosecution. History and the law have accorded land- mark status to at least two of Wisdom’s cases. In United States v. Jefferson County Board of Education, 372 F.2d 836; 380 F.2d 385 (en banc); cert. denied, 389 U.S. 840 (1967), he used AFFIRMATIVE ACTION to desegregate schools “lock, stock, and barrel.” And in Local 189, United Papermakers and Pap erworkers v. United States, 416 F.2d 980 (1969), cert. denied, 397 U.S. 919 (1976), he used a “rightful place” theory to prohibit the awarding of jobs based on a racially discriminatory seniority system. Wisdom’s expertise went beyond civil rights. He wrote landmark opinions in the fields of ADMIRALTY, antitrust, evidence, and LABOR LAW. He also wrote the majority opinion in the first appellate case to hold a manufacturer of insulation material liable for failing to warn workers of the dangers associated with asbestos (Borel v. Fibreboard Products Corp., 493 F.2d 1076 [1973], cert. denied, 439 U.S. 1129). In 1993 Wisdom was awarded the Presiden- tial Medal of Freedom, the nation’s hig hest civilian award, by President BILL CLINTON.In 1996 he received the AMERICAN BAR ASSOCIATION Medal, the highest honor awarded by the American Bar Association (ABA). Wisdom continued to sit on the Fifth Circuit until his death two days short of his 94th birthday on May 15, 1999, in New Orleans, Louisiana. FURTHER READINGS Friedman, Joel W. 1999. “John Minor Wisdom: The Nobelest Tulanian of Them All.” Tulane Law Review 74 (November). Ginsburg, Ruth Bader. 2002. “Four Louisiana Giants in the Law.” Loyola Law Review 48 (summer). Available online at http://www.supremecourtus.gov/publicinfo/ speeches/sp_02-04-02.html; website home page: http://www.supremecourtus.gov/ (accessed August 27, 2009). Marshall, Burke. 2000. “In Remembrance of Judges Frank M. Johnson Jr. and John Minor Wisdom.” Yale Law Journal 109 (April). Sullivan, Barry, et al. 1999. “Tribute to John Minor Wisdom.” Mississippi Law Journal 69 (fall). WITAN An Anglo-Saxon term that meant wise men, persons learned in the law; in particular, the king’s advisers or members of his council. In England, between the sixth and tenth centuries, a person who advised an Anglo-Saxon king was called a witan, or wise man. A witan’s basic duty was to respond when the king asked for advice on specific issues. A witan gave his advice in the Witenagemote, or assembly of wise men. This assembly was the forerunner of the English Parliament. The Witenagemote was the great council of the Anglo-Saxons in England, comprising the aristocrats of the kingdom, along with bishops and other high ecclesiastical leaders. This council advised and aided the king in the general administration of government. The Witenagemote attested to the king’s grants of land to churches or la ypersons and consented to his proclamation of new laws or new statements of ancient customs. The council also assisted the king in dealing with rebels and persons suspected of disloyalty. The king determined both the composition of the council and its meeting times. The Witenagemote generally met in the open air in or near some city or town. Members were notified by public notice or particular summons issued by the king’s select council. When the throne was vacant, the body also met without notice to elect a new king. After the Norman Conquest in 1066, the council was called the commune concillium,or common council of the realm. This was transformed into the Curia Regis, or King’s Council, and by the late thirteenth century, it was called Parliament. The character of the institu- tion also changed during this period. It became a court of last resort, especially for determining disputes between the king and his nobles and, ultimately, from all inferior tribunals. CROSS REFERENCE English Law. WITHERSPOON V. ILLINOIS In the 1960s and 1970s, the U.S. Supreme Court reviewed many issues surrounding the consti- tutionality of CAPITAL PUNISHMENT.InWith- erspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 776 (1968), the Court examined the practice of authoriz ing prosecutors in death penalty cases to exclude from the jury persons who were opposed to capital punishment. The Court held that states could not exclude persons who had “conscientious scruples” or who were generally against capital punishment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WITHERSPOON V. ILLINOIS 433 In 1960 an Illinois jury convicted William C. Witherspoon of murder and sentenced him to death. Witherspoon challenged the constitu- tionality of both his conviction and his death sentence. His appeal was based on an Illinois statute that provided that in murder trials a prospective juror could be challenged for cause and removed from the jury panel if, upon examination, the prospective juror declared that she was opposed to, or had conscientious scruples against, capital punishment. Using this statute, the prosecution in Witherspoon’s case removed almost half the prospective jurors during jury selection. Witherspoon argued that the law unfairly deprived him of his right to a fair trial under the SIXTH and FOURTEENTH AMENDMENTS because the state had allowed to be seated only jurors who were in favor of capital punishment. After the Illinois courts rejected his appeals, the U.S. Supreme Court agreed to decide whether a state could constitutionally inflict the death penalty pursuant to the verdict of a jury composed in this manner. The Court reversed the state courts and agreed that the Illinois statute was unconstitu- tional. Justice POTTER STEWART, in his majority opinion, held that it cannot be assumed that a juror who describes himself as having conscien- tious principles against imposition of the death penalty or against its imposition in an appropriate case thereby states that he would never vote in favor of the death penalty or would not consider doing so in the case at hand. Unless the juror asserts unequivocally that he would automatically vote against the death penalty, irrespective of what the trial might reveal, it cannot be assumed that this is the juror’sposition. Stewart said that the determination of whether to sentence a defendant to life imprisonment or capital punishment cannot be made by a panel intentionally structured to inflict the death penalty. In such a situation, the state crosses the boundary of neutrality. The Court declared that the maximum that can be required of jurors in a capital case is that they be amenable to considering all penalties provided by state law and not be irrevocably committed before trial to voting against the death penalty irrespective of the facts and circumstances that the proceeding might disclose. The Witherspoon decision forced states to rewrite their laws concerning jury selection in capital punishment cases. A general opposition to cap ital punishment is an insufficient grou nd for challenging a prospective juror. The prose- cutor must probe to determine whether the person’s beliefs would deter her from reaching an impartial verdict as to the defendant’s guilt, or whether the person would never vote to impose the death penalty. If a person’s views on capital punishme nt would affect her determina- tion of the case, the person may properly be removed from the jury. FURTHER READINGS Acker, James R., and Charles S. Lanier. 1996. “Law, Discretion, and the Capital Jury: Death Penalty Statutes and Proposals for Reform.” Criminal Law Bulletin 32 (March-April). Archer, Thomas Joshua R. 1992. “The Defense Gets the Reverse-Witherspoon Question.” Mercer Law Review 44 (spring). Krauss, Stanton D. 1986. “The Witherspoon Doctrine at Witt’s End: Death-Qualification Reexamined.” American Criminal Law Review 24 (summer). Neises, Michael L., and Ronald C. Dillehay. 1987. “Death Qualification and Conviction Proneness: Witt and Witherspoon Compared.” Behavioral Sciences & the Law 5 (autumn). WITHHOLDING TAX The amount legally deducted from an employee’s wages or salary by the employer, who uses it to prepay the charges imposed by the government on the employee’s yearly earnings. In Witherspoon v. Illinois, the death sentence of William Witherspoon was reversed although his conviction stood. The Court ruled that the death sentence cannot be imposed by a jury that excludes people with conscientious scruples against capital punishment. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 434 WITHHOLDING TAX The federal INCOME TAX system is a “pay-as- you-go” system that requires wage earners to pay federal tax as they earn income. The federal government enforces this system through a withholding tax on wages and salary income. A taxpayer who does not have enough tax withheld may be subject to penalties for underpayment. In 1942 the federal government instituted a one-time withholding tax as a revenue-raising device during WORLD WAR II. Withholding taxes are now a permanent method of collecting income taxes at the state and federal levels. Each pay period an employer is required to withhold tax from each employee’s gross salary and send it to the INTERNAL REVENUE SERVICE (IRS) and to the state revenue collection agency, if the state has an income tax. When a person is hired for a salaried job, the new employee must complete a federal W-4 form, which authorizes the employer to retain a certain amount of the employee’s earnings to be forwarded to the government to satisfy the employee’s federal income tax liability. The W-4 consists of a certificate showing the withholding allowances claimed by the employee and a worksheet in the form of an abbreviated TAX RETURN . The employee estimates her income, deductions, credits, and exemptions to deter- mine how many withhold ing allowances to claim. The more allowances claimed, the less tax is taken out each pay period. The goal is to have the withheld taxes equal the yearly tax liability. Taxpayers who underestimate the withhold- ing tax needed to satisfy their tax liability may have to pay a penalty for underpayment. The IRS encourages taxpayers to review their financial situation periodically and file amended W-4 forms. Backup withholding is a way of assuring that tax is paid on dividend and interest income. If a taxpayer does not provide his or her SOCIAL SECURITY number to the payer of dividend or interest income, such as a bank, the institution must withhold a “backup” of 31 percent of each payment until the taxpayer provides the number. WITHIN THE STATUTE Encompassed by, or included under, the provisions and scope of a particular law. In the U.S. legal system, a person who is charged with violating a statute must have committed actions that are specifically addressed in the law. When a person’s actions comport with the language of the law, the actions are said to be “within the statute.” Troublesome questions arise, however, when a statute is too general or not specific enough in providing info rmation on the proscribed acts. For example, VAGRANCY laws were used to arrest and detain persons the police believed had or were about to commit crimes. A person could be arrested for having no permanent address or for moving “aim- lessly” through the streets. In Papachristou v. Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), however, the U.S. Supreme Court ruled that a Florida vagrancy statute was unconstitutional because it was too vague to be understood. The Court emphasized that a person cannot avoid engaging in criminal conduct, if prior to engaging in it, he cannot determine that the co nduct is forbidden by law. In CRIMINAL LAW, the courts apply the rule of lenity to deal with ambiguities in criminal statutes. The general rule is that an AMBIGUITY in a criminal statute should be resolved in favor of the defendant. Therefore, a court will choose the more lenient interpretation in determining the punishment. CROSS REFERENCE Void for Vagueness Doctrine. WITHOUT DAY A term used to describe a final ending or adjournment of a session of a legislature or a court; the English translation of the Latin phrase sine die. When a state legislature or Congress makes a final adjournment of a legislative session, the presiding officer typically ends the session by announcing to the body that “the house (or senate) stands adjourned, sine die.” The use of the phrase sine die, or its English equivale nt, without day, is more than a legal formality carried over from the COMMON LAW. The use of without day signifies finality and triggers constitutional requirements that the governor or president must meet if he wishes to sign legislation that has been passed in the last days of a legislative session. For example, the president of the United States has ten days to sign or VETO a bill. If Congress adjourns without day befor e the ten days have expired, however, and the president has not signed the bill, it is said to have been GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WITHOUT DAY 435 subjected to a pocket ve to. A pocket veto deprives Congress of the chance to override a formal veto. State governors have similar pocket veto powers. In addition, once a legislature makes a final adjournment, it generally cannot call itself back into special session. In this situation the governor or president is authorized to call a special session of the legislature. The legislature, however, retains the right to adjourn the special session. If a legislature merely recesses for a holiday or vacation break, it may reconvene at its discretion. In the modern legal system, without day has little importance as a legal formality. At one time it meant the final dismissal of a case. The Latin phrase Quod eat sine die (“that he go without day”) was the old form of a judgment for the defendant; it had the effect of dischar- ging the de fendant from any further appear- ances in court. WITHOUT PREJUDICE Without any loss or waiver of rights or privileges. When a lawsuit is dismissed, the court may enter a judgment against the plaintiff with or without prejudice. When a lawsuit is dismissed without prejudice, it signifies that none of the rights or privileges of the individual involved are considered to be lost or waived. The same holds true when an admission is made or when a motion is denied without prejudice. The inclusion of the term without prejudice in a judgment of dismissal ordinarily indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had not been started. Therefore, a dismissal without prejudice makes it unnecessary for the court in which the subsequent action is brought to determine whether that action is based on the same cause as the original action, or whether the identical parties are involved in the two actions. The purpose and effect of the words without prejudice in a judgment, order, or decree dis- missing a suit are to prohibit the defendant from using the doctrine of RES JUDICATA in any later action by the same plaintiff on the subject matter. The doctrine of res judicata (from the Latin, “a thing decided”) is based on the importance of finality in the law. If a court decides a case, the subject of that case is firmly and finally decided between the persons in- volved in the suit, so no new lawsuit on the same subje ct may be brought by the persons involved. Therefore, the words without prejudice protect the plaintiff from a defendant’s res judicata defense. A court may also enter judgment with prejudice, however. This signifies that the court has made an adjudication on the merits of the case and a final disposition, barring the plaintiff from bringing a new lawsuit based on the same subject. If a new lawsuit is brought, a defendant can properly invoke res judicata as a defense, because a court will not relitigate a matter that has been fully heard before. Often a court will enter a judgment with prejudice if the plaintiff has shown bad faith, misled the court, or persisted in filing frivolous lawsuits. WITHOUT RECOURSE A phrase used by an endorser (a signer other than the original maker) of a negotiable instrument (for example, a check or promissory note) to mean that if payment of the instr ument is refused, the endorser will not be responsible. An individual who endorses a check or promissory note using the phrase without recourse specifically declines to accept any responsibility for payment. By using this phrase, the endorser does not assume any responsibility by virtue of the endorsement alone and, in effect, becomes merely the assignor of the title to the paper. A without recourse endorsement is gov- erned by the laws of COMMERCIAL PAPER, which have been codified in Article 3 of the UNIFORM COMMERCIAL CODE (UCC). The UCC has been adopted wholly or in part by every state, establishing uniform rights of endorsers under UCC § 3-414(1). A without recourse endorsement is a qualified endorsement and will be honored by the courts if certain requirements are met. Any words other than “without recourse” should clearly be of similar meaning. Because the payee’s name is on the back of the note, he is presumed t o be an unqualified endorser unless there are words that express a different intention. The denial of recourse against a prior endorser must be found in express words. An implied qualification, based on the circumstances surrounding the endorse- ment to a third party, will not be recognized by GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 436 WITHOUT PREJUDICE the courts. An assignment of a note is generally regarded as constituting an endorsement, and the mere fact that an instrument is assigned by express statement on the back does not make the signer a qualified endorser. The qualification without recourse, or its equivalent, is limited to the immediate endorse- ment to which it applies. It may precede or follow the name of the endorser, but its proximity to the name should be such as to give a subsequent purchaser reasonable notice of the endorsement to which it applies. A person might agree to accept a check without recourse if the person believes she could collect the money in question. Often the purchaser of such a note will acquire it at a substantial discount from the face value of the note, in recognition that the purchaser can only seek to collect the money from the original maker of note. An example of a without recourse note is a personal check written by A, the maker, to B, the payee. B, in turn pays off a debt to C by endorsing the check and adding the without recourse phrase. If A’s bank refuses to pay C the check amount because A has insufficient funds in his checking account, C cannot demand payment from B. C will have to attempt to collect the money from A. WITNESS STAND The witness stand is the location in a court- room where the parties and witnesses offer their testimony. Courtrooms in the United States have always had places where witnesses stand or sit to give testimony. Beginning in the twentieth century, witnesses usually sit in a chair that is placed on an elevated platform that adjoins the judge’sbench. The phrase “take the stand” refers to a witness approaching the bench and going to the witness area. However, some specialty courts, such as juvenile or family court, may have a more informal courtroom where the parties and witnesses sit around a table. When cases are arbitrated or mediated, the proceedings do not take place in a courtroom. WITNESSES Individuals who provide evidence in legal proceed- ings before a tribunal. Persons who give testimony under oath in court, concerning what they have seen, heard, or otherwise observed. LEGAL PROCEEDINGS , especially trials, depend on witnesses to present factual evidence to the fact finder, who may be a judge or a jury. Typically each party in a dispute has its own set of witnesses who are questioned under DIRECT EXAMINATION . All witnesses, however, must sub- mit to CROSS-EXAMINATION,whichmeansbeing questioned by the opposing party. Attendance Individuals who are called as witnesses have a public obligat ion to attend the court or legislative tribunal to which they are summoned and to give testimony. Constitutional and statutory provisions provide that the parties to a civil lawsuit have a right to compel essential witnesses to appear. This is done through the service of legal process called a “subpoena,” which is issued by the court. The state is also entitled to COMPULSORY PROCESS in any proceeding in which it has an interest, either civil or criminal. An individual accused of a crime has the right to compulsory process in order to obtain witnesses on his behalf. However, the right to compel witnesses does not ensure the actual attendance of the witnesses. An individual who receives a SUBPOENA is bound to obey it and appear in court. Once a witness appears in court, he may be forced to attend court unt il dismissed by the court or by the party who summoned him. A person who fails to appear and testify subject to a subpoena can be punished for CONTEMPT. In addition, the failure to appear may result in the potential witness being liable to the individual who summoned him for any damages that result from his nonappearance. Damages that result from a postponement of the trial because of the failure of a witness to attend can also be assessed. However, if it is determined that the testimony of the defaulting witness was not crucial, the individual who summoned the witness has no right to recover damages. A witness who is not able to appear at trial may give testimony beforehand and have it recorded on videotape. The witness is examined and cross-examined by the parties, and the tape is then shown at trial. In a criminal trial, a witness whose testi- mony is crucial to either the defense or prosecution is called a “material witness.” In GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION WITNESSES 437 . trial 1800 Appointed clerk of the Va. House of Delegates 1792 Admitted to Va. bar 1772 Born Bladensburg, Md. 1775–83 American Revolution 1812–14 War of 1812 William Wirt. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN. UNDO THE EFFECTS OF PAST DISCRIMINATION .THE CRITERION IS THE RELEVANCY OF COLOR TO A LEGITIMATE GOVERNMENTAL PURPOSE . —JOHN MINOR WISDOM GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432. History of Espio- nage: The Clandestine World of Surveil- lance, Spying and Intelligence, from Ancient Times to the Post-9/11 World. London: Carlton Publishing Group. GALE ENCYCLOPEDIA OF AMERICAN LAW,