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the constitutional basis of activity of prospecting services of the USA

In the states with Anglo-Saxon legal system at definition of the constitutional source of powers of the state bodies, at revealing of the constitutional basis of this or that standard legal act often it is necessary to resort not to literal textual comparison of separate phrases in the constitution and in the investigated normative act, and to expanded enough interpretation sometimes rather short and laconic constitutional positions and formulations.

Let alone the Great Britain with its "unwritten" constitution, even those representatives of Anglo-Saxon legal system who possess own textual constitutions and which (like the same United States of America) have undergone in the XX-th century to rather appreciable influence of the statute law, in texts of the constitutions are usually inclined to fix only most the general legal ideas which for their practical application in the majority demand corresponding additional legal interpretation.

The constitution of the USA - one of the oldest constitutions and for the more than two hundred year's history has undergone only to minor alterations. At the same time for more than two centuries which have passed from the moment of acceptance of the Constitution, in the American state and a society there were enormous changes, in a root changed conditions of a life of people, character of economic way, legal system of the United States.

It is quite natural, that from the moment of creation of the American Constitution there was no invariable that sense which was put authorised to interpret the constitution bodies in its various articles and clauses. Approaches to Constitution interpretation developed and changed together with development and change of the most American society and the state. Possibility of flexible interpretation rather the general legal formulations of the Constitution, c one party, became pledge of its tremendous historical stability and has allowed not to resort within more than two centuries to serious revision of articles and constitution positions. On the other hand, absence in the Constitution of rigid, concretising formulations leaves rather big open space for interpretation of the constitutional positions and norms and, as consequence, considerably complicates a problem of an establishment of the constitutional source of powers of various state bodies and a problem of revealing of the constitutional basis of legislative and subordinate legislation standard legal acts.

Taking into consideration features of the Constitution of the USA and character of the legal rules fixed in the constitution and positions, quite logical and natural looks that fact, that the Constitution does not contain direct mentions or direct references to prospecting activity or to bodies, proxy messages similar activity. The constitutional basis of prospecting activity (how much, considering features of the American constitution, in general it it it is possible to speak about that) is deduced by interpretation of articles of the Constitution by the authorised state bodies. And at an establishment of the constitutional basis of prospecting activity (and it to the full proves to be true historical practice) those features of interpretation which are caused by a concrete historical epoch and sights peculiar to these epoch and estimations of a place and an investigation role in the state are more significant.

Those distinctions in interpretation of the constitutional basis of prospecting activity which are connected with specificity and order of interpretation of the constitutional norms various branches of the government of the United States have considerably smaller value.

To some extent interpretation of positions of the Constitution in the United States is carried out by all three branches of the power - legislative, executive and judicial. Thus, however, tokovanie Constitutions from a judicial branch of the power has essentially bolshy legal weight as the judicial authority possesses the right to take out final judgement about an essence and about spirit of those or others constitutional or legislative guidelines. Any judgement which has been taken out by the judicial authority, comes under to revision only in the higher degree of jurisdiction. The conclusion and interpretation of the Supreme Court of the USA can be reviewed precisely the Supreme Court of the USA [418].

Practical revealing of the constitutional basis of prospecting activity and, in wider plan, the constitutional basis of activity of prospecting services, in the United States is initially connected with some historical complexities. Actually already before acceptance of the Constitution of the USA and creation of a uniform federative state the former North American colonies of England in the course of struggle for the independence led active prospecting activity against the same England. In practice has developed so, that investigation acted in a role of necessary addition or more truly even to tell in a role of an integral part of the armed struggle of the former colonies for independence. The future first US president and the commander-in-chief armed forces of confederation George Vashington [419] used services of scouts by the most active image. In investigation work the future creators of the American Constitution Alexander G amilton and John Adams accepted active participation.

It is quite natural, that active participants of war for independence which have occupied further the majority of key posts in the Congress and in an executive vertical of the power, even after the termination of emancipating war have kept to investigation such relation which was generated even in their participation in operations. All American Congresses of the first convocations and the first American presidents who accepted in due time direct participation in emancipating war, perceived prospecting activity as an activity integral part on country defence. Accordingly, as the constitutional basis of prospecting activity (with reference to the given historical period) the Constitutions of the USA fixed by the second article the constitutional powers of the president as supreme commander in chief by armed forces [420] were meant. As the proof of competency of similar judgement working materials of the Congresses of the first convocations can serve. For example, considering in 1794 a question on payment of the monetary maintenance to a certain Gilbert Dinu (to one of the scouts who were carrying out on the instructions of commander-in-chief Dzh. Washington prospecting missions in back of the enemy), the House of Representatives directly specifies that the President Washington has carried out employment of the scout owing to the powers of a supreme commander in chief armed forces [421].

It is reasonable to assume, as the Congress, and the presidential power considered similar treatment as rather obvious and not demanding additional legal interpretation. At least, as the independent theoretical problem a question on the constitutional basis of prospecting activity does not rise in one legal document concerning by this period. The judicial authority also did not aspire (and to a certain extent and could not) to express the opinion on this problem. The Supreme Court of the USA and the courts subordinated to it, owing to features of the judiciary of the United States, are actually deprived possibility to solve similar questions in purely theoretical plan. Courts can interpret the constitutional norms only in the event that similar interpretation is necessary for the permission of concrete lawsuit. In absence of the lawsuits to some extent connected with activity of investigation, courts have not the right to express somehow the point of view concerning activity of investigation and as these positions should be interpreted with reference to practical activities of prospecting bodies should be based on what positions of the constitution. Considering that prospecting divisions existed only in system of armed forces of the USA, any lawsuit to some extent mentioning questions of activity of investigation, could be considered only by the military court of the United States. Military tribunals in the USA are a part not judicial, but an executive branch of the power [422].

Taking into consideration the aforesaid, it is necessary to conclude, that at an estimation of the constitutional basis of prospecting activity in the existence of the USA first some decades it is necessary to carry out the analysis not the legal acts published by legislative and executive branches of the power for the purpose of realisation of the constitutional positions, not the judgements which are taken out by the Supreme Court of the USA and subordinate degrees of jurisdiction in connection with disposal of legal proceeding, mentioning a prospecting problematics, and the real practical steps directed on establishment and development of prospecting bodies.

Undertaken first of all within the limits of a presidential vertical, these steps to the basic have been directed on preservation of that status and that role which investigation has got in emancipating war. That is after formation in territory of the former 13 North American colonies of England of an independent federative state prospecting activity actually still continued to be perceived how it was perceived even in existence of the American confederation, namely - as one of directions of activity of armed forces of the country. For definition of the constitutional basis of prospecting activity it was used (or more likely even that position of article of the second Constitution which established powers of the US president as a supreme commander in chief armed forces [423] was meant).

However the similar treatment already in the first years after formation of a federative state insufficiently defined the constitutional basis of prospecting activity more exhaustively. For example, in 1790 George Vashington from the Congress sanction founds the Extreme fund of the international contacts known also under the name of Fund of confidential service [424] which intended first of all for financing of prospecting activity of separate officials and divisions of foreign policy department of the USA. Actually, prospecting powers, let and not on a constant basis, during the peace period had been allocated absolutely not military body [425].

Thereby already in at the beginning of existence of the United States as a part of an executive vertical there are organizational structures which, not being a part of the military or naval ministry, nevertheless are allocated by powers to lead prospecting activity. Here again already far it is not so obvious, that the constitutional basis of similar prospecting activity it is necessary to consider special powers of the president as a supreme commander in chief as armed forces of the USA.

That fact, that along with armed forces in process of realisation of prospecting activity all is more actively involved foreign policy department of the United States - State department, looks quite logical. After the end of war with England the requirement of the USA for the prospecting information hardly became smaller, than was in days of war. Weakness of the newly founded federative state, instability on external borders the federations incessant attempts of England to return under the power at least a part of lost territories did not allow the United States to neglect at least the slightest possibility for reception of the exact and timely prospecting information both on a situation in frontier territories, and about moods and plans on North American continent of leading European powers.

In organizational structure G osudarstvennogo department the special prospecting body, but practically all foreign diplomatic representatives of the USA actively for the present have not been founded led gathering of the prospecting information, receiving on it means from Fund of confidential service. In the Congress at discussion of a question on efficiency of prospecting activity as the bodies responsible for getting of the prospecting information, name any more only the military ministry, but also US State department [426].

Thus, in practice in addition to military department the US president has given (from the actual consent of the Congress) and to department foreign policy, that from the point of view of the legal theory already it is impossible to consider powers of conducting prospecting activity as realisation of prospecting activity by subordinates to the president bodies owing to its powers of a supreme commander in chief. Actually, from the moment of involving in prospecting activity (during the peace period) State department it is possible to speak about expansion of the constitutional basis of prospecting activity at the expense of the rights of the president fixed by the constitution in sphere of the international activity [427]. The recognition the Congress of the fact of presence of practice of attraction of employees of foreign policy department of the United States to getting of prospecting data (the similar recognition contains already that the Congress estimates efficiency of prospecting activity of State department) [428] says that the Congress real practical steps has expressed the consent with wider treatment the US president of the

The constitutional powers in sphere of the international relations [429].

It is necessary to recognise, however, that in the first decades of existence of the USA when really prospecting activity already led both the military and naval ministries, and State department, a question of a teoretiko-legal substantiation of the constitutional competency of such activity of any of branches of the power and has not been put. After some strengthening of the international positions of the USA and definitive refusal of England of attempts to return the North American possession, the attention of the authorities to prospecting activity has essentially decreased. The prospecting services which have arisen in struggle for independence have been liquidated. In a peace time in investigation any of divisions of the federal government [430] seriously was not engaged. Probably, these can explain a total inattention from various branches of the power to a question of definition of the constitutional basis of prospecting activity [431].

The situation with prospecting activity changes in second half XIX centuries a little. At this time, in civil war between the North and the South, both belligerent parties found enough considerable quantity of prospecting services [432]. Effective prospecting activity becomes again not only a necessary condition of success in military campaign, but also the important factor in preservation of integrity of a uniform federative state.

Not casually, that the first lawsuit in which the higher court of justice of the USA has mentioned a problem of interpretation of constitutionality of powers of the president in investigation sphere, concerned just those events which took place in civil war in the USA of 1861-1865. In 1875 at a legal investigation v. United States the Supreme Court of the USA has raised the question about, whether the US president, from the point of view of the Constitution had the right, to carry out employment of persons for conducting prospecting activity in war between the North and the South, or, if to bring an attention to the question in more general-theoretical plan (and in the given situation the Supreme Court not only could, but also should put forward similar treatment of a question) - whether the head of the American state in general is competent to carry out employment of scouts. The court has positively answered this question. In the put forward substantiation of the similar decision the higher degree of jurisdiction referred to powers of the president as supreme commander in chief armed forces of the USA.

It is necessary to notice, however, that the formulation of a judgement specifies only in the right of the president to hire persons for conducting prospecting activity concerning the military opponent of the United States, that is in circumstances of a wartime [433], and the court has only confirmed the right of the president to hire confidential agents "... On purpose zasylki them on territory of the enemy and getting of the information on forces, resources of the opponent and movings of its armies" [434]. Thus the question on that has been purposely enough bypassed, similar position to peace time conditions is how much applicable.

Though the given lawsuit also was considered in 1875, that is during this period when the USA did not participate in military actions, the essence of the matter concerned events of the period of civil war. Hence, formally the court has not been obliged to take out judgement about a question which is beyond proceeding on this business, that is in this case to solve a question on the right of the president to hire officials for conducting investigation not only in military, but also during the peace period. However more logical other explanation of indecision of court looks: having defined the constitutional basis of prospecting activity, proceeding from powers of the president as supreme commander in chief, the Supreme Court thereby actually recognised the exclusive competence of the president of the questions connected with investigation. In force of observance of a principle of separation of powers the Supreme Court of the USA traditionally aspires to limit to the maximum image the intervention in those questions which under the constitution are carried to conducting other branches of the power. As the absolute necessity to interpret powers of the president on hiring of scouts during the peace period was absent, and both legislative, and executive power branches did not aspire to express the opinion on the given question, the Supreme Court also has preferred to refrain from such interpretation [435].

Theoretically quite proved in business v. United States could look and the decision confirming the right of the president to hire agents for conducting of prospecting activity both in peace, and in a wartime. Circumstances of the case in point concerned the civil war period between the North and the South. At the same time Avraam the Lincoln, beginning operations against southerners, proved their legitimacy not necessity of opposition to the external opponent, and the right of the president to use armed forces for suppression of revolts in territory of the USA, that is that right which constitutionality has been confirmed by the Supreme Court of the USA already during the armed opposition of the North and

The south [436 [437].

In business v. United States431 attempt to extrapolate legal understanding of presidential powers of a supreme commander in chief armed forces of the USA, developed to second half XIX century for all period of development of the American constitutionalism is rather interesting. It is easy enough to show, that that treatment which uses the Supreme Court, quite corresponds to theoretical views of 1875 when the judgement was accepted. Meanwhile the maintenance of the given decision meant a theoretical substantiation and the previous activity of the American presidents directed on use of investigation in interests of the federal government. However during the previous periods of the American history a little bit other representations about an essence of powers of the president as supreme commander in chief dominated.

In the first years of existence of a federative state the given area of presidential powers was treated rather narrowly, that is no more and not less, than the right of the president to be at the head of armed forces. According to one of authors of the American Constitution of A.Gamiltona, power of the US president as a supreme commander in chief should include "... No more than the Supreme command and management overland and voennomorskimi forces" [438].

Considerable progress in interpretation of the constitutional position assigning to the president of function of a supreme commander in chief, has been reached already less than in a decade after creation of the American federation. In 1795 and 1807 years, leaning directly on the constitutional powers of the president as supreme commander in chief, the Congress passes the laws allowing the president to use armed forces for maintenance of execution of laws [439]. In two decades the Supreme Court of the USA not only has confirmed full conformity of the constitution of these laws, but also recognised for the president the right of final judgement of a question on, where and when there was a situation demanding use of armed force for maintenance of execution of laws [440].

In the judicial decision on business v. United States is important not what decision was accepted by court, and that for the first time in the legal plan the attention to the question on a constitutional law of the president has been brought to hire persons and to create bodies for the purpose of conducting prospecting activity. Though practice not to focus attention on revealing not only constitutional, but also in general a legal basis of prospecting activity almost whole century, the first step in a direction of a legal substantiation of existence as a part of the federal ministries and departments of special bodies and the divisions leading gathering and getting of the prospecting information will remain in the USA even, has been made.

It is remarkable, that already less than in a decade after that judgement constantly operating prospecting services have been created at the military and naval ministries [441]. Thereby it is possible to say that the chief executive of the United States by means of the practical actions de facto has solved to own advantage a question at issue on legitimacy of use not only in a wartime as the constitutional basis of prospecting activity of powers of the US president as a supreme commander in chief armed forces.

As well as in a case with interpretation of the right of the president to use the powers of a supreme commander in chief as the constitutional basis of prospecting activity in a wartime, the judicial authority of the USA with considerable lateness has expressed the opinion on such questions, as:

1) the right of the president to appeal to the powers of the commander-in-chief for a substantiation of the constitutional legitimacy of prospecting activity during the peace period; 2) legality of use by the president of the powers in sphere of the international relations for conducting external prospecting activity.

Only in 1948 by consideration of lawsuit Chicago and S. V. Waterman S.S. Corp. [442] Supreme Court had been definitively resolved a dilemma about legitimacy or illegitimacy of use as the constitutional basis of prospecting activity during the peace period by the fixed 2nd article of the Constitution of the USA of powers of the president as supreme commander in chief armed forces, and also the powers of the president fixed in the same article in sphere of the international relations [443].

In the given decision the Supreme Court has actually generalised presidential powers in the international sphere and in sphere of the Supreme command of armed forces of the country within the limits of the uniform constitutional basis:

. . The president, in an equal measure as the commander-in-chief armed forces and as the body representing the state in external relations, is competent to have necessary prospecting services "[444].

Though in the specified formulation the question on that also is not specified, in peace or a wartime the president is competent to found prospecting services, a disposition of the given lawsuit in which one of the private companies challenges legality of orders of the Civil Aeronautic Administration, abundantly clear specifies in that time period when the USA did not participate in any military conflict. Considering a principle of finality of judgement of the Supreme Court [445], it is possible to conclude, that the given judgement puts end in a question on the constitutional basis of prospecting activity and confirms legitimacy of establishment with the US president of prospecting bodies not only in military, but also in a peace time.

Briefing resulted above a reasoning, it is possible to allocate two constitutional bases, upravomochivajushchih the US president to create prospecting bodies both in peace, and during the military period:

1) powers of the US president as supreme commander in chief country armed forces;

2) powers of the US president in sphere of the international relations [446].

Estimating a modern situation of development of a legal basis of the organisation

And activity of investigation of the USA, it is possible to approve, that hardly in foreseeable prospect it is possible (or even to tell more truly, expansion of the constitutional basis of prospecting activity is expedient). The further development of the constitutional basis of prospecting activity of the USA not only is not connected now with any practical necessity, but also can is to a certain extent negative affect an overall performance of prospecting bodies as can break the developed balance between interests of protection of constitutional laws and freedom of the American citizens and necessity of their reasonable restriction with a view of maintenance of safety of all American society and the American state.

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A source: Dundukov Michael Jurevich. INVESTIGATION In the MACHINERY OF GOVERNMENT of the USA (ISTORIKO-LEGAL ASPECT). The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow 2014. 2014

More on topic the constitutional basis of activity of prospecting services of the USA:

  1. Chapter 2. SYSTEM of PROSPECTING SERVICES of the USA
  2. Investigation of the USA in 50-60 years XXвека. Development of technical kinds of prospecting activity
  3. development of prospecting activity of the USA as one of independent kinds of the state activity (1947 - 2014)
  4. the control of the Congress over activity of prospecting community of the USA
  5. formation of prospecting activity in the USA (the end of XVIII century - 1947)
  6. Chapter 1. DEVELOPMENT of PROSPECTING ACTIVITY In the USA (the END XVIII - the XXI-st century BEGINNING)
  7. prospecting community of the USA and departmental _разведывательные services
  8. system of the standard legal acts forming a legal basis of the organisation and activity of investigation. A role of judicial precedents in development of a legal basis of the organisation and activity of investigation of the USA
  9. Legislative fastening of structure of prospecting community of the USA in 90th years of the XX-th century
  10. the basic laws of formation of prospecting system of the USA (during the period till 1992)
  11. the control over realisation and authorisation operativnotehnicheskih actions of prospecting services
  12. § 5. Concept, structure and efficiency of the mechanism of maintenance of constitutional laws of the person of a police field of activity (on an example of the USA)
  13. CHAPTER 2. FORMATION OF THE MECHANISM OF MAINTENANCE OF CONSTITUTIONAL LAWS OF THE PERSON IN THE FIELD OF ACTIVITY OF POLICE OF THE USA AND ITS STRUCTURE
  14. Chapter 3. FORMATION And DEVELOPMENT of the LEGAL BASIS of the ORGANIZATION And ACTIVITY of INVESTIGATION of the USA
  15. the chapter III HUMAN FACTOR AS the BASIS of EFFECTIVE ACTIVITY of the ENTERPRISES of SPHERE of SERVICES
  16. legal regulation of activity of the investigation directed on gathering and getting of the prospecting information
  17. Zimin Evgenie Aleksandrovich. the MECHANISM of MAINTENANCE of CONSTITUTIONAL LAWS of the PERSON In the POLICE FIELD OF ACTIVITY (ON the EXAMPLE of the USA). The dissertation on competition of a scientific degree of the master of laws. Moscow – 2015, 2015
  18. Chapter 4. FEATURES of STANDARD LEGAL REGULATION In SPHERE of PROSPECTING ACTIVITY