< …And The Law Won


Friday, August 18, 2006

BOB GARFIELD: This is On the Media. I'm Bob Garfield. Over the past several months, we've been following the patchwork of lawsuits challenging wiretapping by the National Security Agency. On Thursday, one of those legal challenges scored a significant victory when a federal judge in Detroit ruled against the Bush Administration, deeming the NSA program unconstitutional and ordering it to stop at once. The case was brought by the American Civil Liberties Union on behalf of a group of journalists, lawyers, scholars and non-profit organizations who argued that the possibility of having their international calls wiretapped was hampering their work. Many legal scholars were skeptical as to whether the journalists had cause or standing because they had no actual proof that their calls had been tapped. But the judge sided with the reporters. Attorney General Alberto Gonzalez has already announced that the Justice Department will appeal. Jonathan Turley is a professor of public interest law at George Washington University and a lead counsel in another federal case also challenging the NSA program. Jonathan, welcome back to the show.

JONATHAN TURLEY: Thank you very much.

BOB GARFIELD: What does this decision say?

JONATHAN TURLEY: Well, the decision takes the White House out to the shed on almost every point. The court found that the operation is just clearly unconstitutional, that the president has been acting unlawfully for years in ordering warrantless domestic surveillance.

BOB GARFIELD: Now, there have been a number of these suits filed at various courts around the country with respect to the NSA program. This one was particularly interesting to us, because among the complainants are journalists who say that just the very idea that an overseas news source could be being eavesdropped on has a chilling effect on the process of journalism. Do you think that argument had any place in the judge's decision or was this strictly about the constitutionality of eavesdropping in general?

JONATHAN TURLEY: Well, ironically, I think this was the least likely case to find this program unconstitutional. There were many questions about standing and whether these types of claims really could sustain a challenge against an intelligence operation. But it really did become the sleeper, and ultimately this judge found that there was sufficient standing to get to the merits. But the case primarily focused on the operation itself. The court did not view this as a particularly close question. Now, the implications of that are pretty significant, because if the Court of Appeals agrees with this decision, it means that the president didn't just simply act unlawfully. Under the statute, violations of this kind are defined as federal crimes. So if this is upheld, there is a strong argument that the president committed a federal crime, not once, but maybe over 30 times.

BOB GARFIELD: Now, the attorney general has made clear he's going to appeal this case. Assuming for a moment that the judge in Detroit agrees to stay the ruling pending the outcome of that appeal, what happens if, in fact, the decision is upheld on appeal and winds up in this heavily polarized Supreme Court? What do you expect would happen there?

JONATHAN TURLEY: Well, first of all, a loss in the Sixth Circuit would be very stinging, because this is not viewed as a liberal circuit. It's actually a circuit that has been very deferential to the president. But they will no doubt go to the Supreme Court, and it's a better court for them. They have Sam Alito on the court, and he is renowned for his deference to the executive. I mean, it's virtually blind deference. And so they can count on his vote and Thomas' vote, Chief Justice Roberts' vote. But the problem is they just lost the Guantanamo Bay case, and that case really rejected the legal claims made for the NSA operation. And so a majority on the court has already told this White House you're going too far.

BOB GARFIELD: Alberto Gonzalez has been claiming all along that – don't worry, we have sufficient legal justification under Congress's mandate to carry on these programs, but we can't tell you what are, because if we did, we'd have to kill you. As a legal scholar, are you not just dying to find out what those legal justifications are?

JONATHAN TURLEY: [LAUGHS] Well [LAUGHS], it really is par for the course with this administration that we really do have something that would give us the authority, but it's locked in this closet, and just trust us, we're the government. The problem for Alberto Gonzalez is that there really is nothing in the closet that is going to be relevant. On this point, I think the judge in Detroit was absolutely right. What she said was, I know what I need to know. That is, I know that you have never been given this authority by Congress. I know that citizens have these constitutional rights that cannot be abridged, and I know that you did not get a warrant for this surveillance. And that's what is the most relevant thing. Now, you may have information that you're pursuing Bin Laden or that you've stopped some attack, but that doesn't go into the constitutional analysis. You first have to show that you have authority, not just a reason to act.

BOB GARFIELD: Okay, Jonathan. As always, thank you so much.

JONATHAN TURLEY: It's my pleasure.

BOB GARFIELD: Jonathan Turley is a professor of public interest law at George Washington University. [MUSIC UP AND UNDER]