Apple Customer Letter: Constitutionally Sound

Tim Cook, CEO of Apple has written a letter to their customers outlining some outrageous demands the FBI has placed upon Apple and assuring its customers it has no intentions of complying.  The FBI wants Apple to create programming that will allow the FBI, and whoever else might get their hands on the program, a backdoor into every apple phone without the knowledge or permission of Apple or the owner of the phone. No warrants necessary for the FBI, just a program to permit all future hacks at the whim of the government.  The FBI claims the All Writs Act of 1789 gives them the authority to search and seize whatever and whenever they want.  But is that what that act really says? 

The All Writs Act of 1789 was a part of the Judiciary Act of 1789.  The purpose of the Judiciary Act was to create the composition and procedures of the federal judiciary as established in Article 3 of the Constitution.  The All Writs Act is simply the declaration that the federal courts can issue warrants. Not any warrant, but warrants limited to federal power and the Rights of the people.

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.[i] 

Notice the language of section (a) that states that writs are allowed "in aid of their respective jurisdictions."  The writs only have authority where the federal judiciary has authority, as limited and prescribed by Article 3 and Article 6 of the Constitution.

Article 3 section 2 limits the federal court's jurisdiction to cases of law and equity "arising under this Constitution" and "which shall be made, under their Authority;" It is not a limitless jurisdiction to everything legal. Only to those things that are specifically delegated to the federal government.

Article 6 section 2 tells us that any action by the federal government that is not "made pursuant" to the Constitution, is not the supreme law of the land and therefore not binding upon the States.

Section (a) also dictates that these writs must be "agreeable to the usages and principles of law."  The greatest limitation on "usages" and "principles of law" are codified in the 4th Amendment of the US Constitution. The 4^th Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th Amendment makes it very clear that these Writs are not open to whatever whim the FBI might desire.  These writs are clearly limited by the Constitution, in both substance and form.

Section (b) is no deviation from the Constitutional standards of section (a).  The "alternative writ or rule nisi" is also limited by the "jurisdiction" of the courts as mentioned above.  A review of the definition of the word "nisi" also confirms this understanding.

"…(of a decree, order, or rule) taking effect or having validity only after certain specified conditions are met."

Even a nisi is only valid once certain specified conditions are met.  What conditions would need to be met?  Articles 3 and 6 of the Constitution, combined with the 4th Amendment of the Bill of Rights.

This All Writs Act of 1789 is not the expansion of power that the FBI is trying to imply that it is.  I applaud Tim Cook and Apple Inc. for standing up for the Rights of their customers.  I am disgusted by this current FBI and their consistently unconstitutional behavior and blatant disregard for the Rights of the people. 

Obviously the FBI has become an agency that is willing to lie to maintain their arbitrary power regardless of the consequences to the people, their lives, their liberty, or their property.

Perhaps the leadership of the FBI would be better served by studying a different bit of history to see how arbitrary power exercised by government works out for the government.  May I suggest this lesson on James Otis, Jr. and the British Writs of Assistance.