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were repealed in July 2008 when Congress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 />speeches/sp_02-04-02.html; website home page:
(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