The legal landscape is still feeling the aftershocks of the disclosure, last December, of a vast NSA domestic wiretapping program. But a bill sponsored by Senator Arlen Specter would take all of the pending cases against the NSA and move them to a secret court, off limits to media and the public. George Washington University law professor Jonathan Turley tells Brooke why the proposed solution might be worse then the original offense.
BROOKE GLADSTONE: The legal landscape is still feeling the aftershocks of the disclosure last December of a vast National Security Agency domestic wiretapping program. More than 20 lawsuits have been working their way through the courts, and the government has often defended itself with the most reliable weapon in its arsenal the State Secrets Privilege. Essentially, that's when the government claims that it would have to reveal state secrets if the case went to trial. That handy tactic has shut down many, many cases against the government since 9/11.
So it came as a surprise last week when a San Francisco judge rejected the State Secrets Privilege and ruled that a case against the government and AT&T, related to NSA wiretapping, could go forward.
Jonathan Turley is a professor of public interest law at George Washington University and a lead counsel in a federal case looking into the NSA program. He says that until now, the State Secrets Privilege has served the government as an almost impenetrable shield from legal scrutiny, wielded in ways its creators never intended.
JONATHAN TURLEY: You know, the Supreme Court said that not all classified matters should be subject to this privilege. This was supposed to be a very exceptional thing to dismiss a case on this basis.
BROOKE GLADSTONE: Now, a case was dismissed in Chicago on Tuesday because of the State Secrets Privilege, but surprisingly, as we mentioned, the privilege didn't work in San Francisco. So what happened?
JONATHAN TURLEY: It really was the factor of the judges. You have a judge in San Francisco that said, look, I just don't buy your argument that simply forcing these telecom companies to confirm or deny whether they gave you a lot of information would bring the republic to its knees.
The judge in Chicago adopted a much more deferential view to the government, and, frankly, a view that's more consistent with other courts. He just simply said, look, I have this declaration that says that national security would be injured. He seemed to indicate that he wasn't quite confident of that, but said that he had to go along with what the administration said.
BROOKE GLADSTONE: So let's talk about another case, the Supreme Court decision on Hamdan, which found that the government did not have the right to try Guantanamo detainees in secret military tribunals. You say that this decision has the effect of bolstering all the cases now pending against the NSA wiretapping program. Why?
JONATHAN TURLEY: Well, the administration's been arguing for years now that when they were given authority by Congress, after 9/11, to go after the perpetrators of that, that it gave the president absolute authority in eavesdropping, in handling of detainees and enemy combatants. And many of us have questioned that and said, that's just not the case. This is a very narrowly-defined resolution, and, in fact, the senators rejected broader language.
Well, it still gave them an argument. They could say, people can disagree, but this is the authority that we believe is clear. Well, the Supreme Court rejected that and refused to read into it this type of broad authority.
Now, when it did that in Hamdan, it virtually cut away the legal claims used to defend the NSA operation. Now, what that means is hard to overstate, because some of us believe that the president committed a federal crime when he ordered, not once but 30 times, the renewal of this program.
BROOKE GLADSTONE: So into this patchwork of legal cases working their way through our courts enters Pennsylvania Republican Arlen Specter -
JONATHAN TURLEY: [LAUGHS]
BROOKE GLADSTONE: [LAUGHING] - Chairman of the Senate Judiciary Committee. He said in an Op-Ed in Monday's Washington Post that the surveillance program was, quote, "a festering sore on our body politic," and said that he held "fierce, torturous negotiations with the president and came out with a major breakthrough."
JONATHAN TURLEY: [LAUGHS]
BROOKE GLADSTONE: You don't think so.
JONATHAN TURLEY: The Specter-Cheney compromise would remove these cases challenging the NSA operation to a secret court, called the FISA court. This secret court was designed to approve warrants for searches. It's like taking Marbury versus Madison and sending it to a traffic court. It is absolutely preposterous [LAUGHS] to send a massive Constitutional case to that court where opposing counsel is not allowed in the courtroom, so the government doesn't have any opposing counsel.
If the government wins, no one can take an appeal, and moreover, Specter would allow the government unlimited chances to tweak the program until it passes review in the secret proceeding.
BROOKE GLADSTONE: But Specter's justification, as I read it, is that if all these cases were to proceed in court, the government would invoke things like the State Secrets Privilege, and basically they would be shut down anyway, so at least this way the president has a place where he can feel comfortable being scrutinized.
JONATHAN TURLEY: Well, the problem with Specter's defense is that this is a case where the so-called do-nothing Congress actually should do nothing. Because you have various cases that are very close to a final opinion on the legality of the NSA operation.
What the White House, what they fear is that now that the Supreme Court cut away their legal authority, they may be looking at a public opinion that says the President of the United States has violated federal law. Specter takes great pride in the fact that he was able to get the president to agree that he could be subject to some form of review.
The interesting thing is that the Specter bill doesn't actually require the president to do it. It just says the [LAUGHS] president can do it. Well, you know what? In our system, he doesn't get to choose. These programs are already being reviewed by the courts.
BROOKE GLADSTONE: Specter wrote that without knowing the exact contours of the NSA program, it's impossible to say whether the president is right or wrong when it comes to his authority but that three federal appeals court decisions suggests that the president may be right. What's he talking about? Are the courts tending towards this expansion of presidential authority or against it?
JONATHAN TURLEY: [LAUGHS] No. No. Those are decisions that spoke very generally about the president's inherent authority. But most of us do not believe that those are either controlling, or, in some cases, relevant. I think what Senator Specter is trying to do is to say, I really didn't get snookered as much as people think I did. We could lose this.
Well, you know, it's a very telling thing when not a single attorney involved in any of this litigation thinks that this is a good idea. All of them, as far as I know, have denounced it as a terrible mutation of our system. Part of our constitutional system requires a certain leap of faith. You don't know if you're going to win. But there's only one rule that is absolutely essential in a Madisonian democracy, and that is you let the federal courts decide. Sometimes you don't win.
But you don't create secret courts where there's no opposing counsel and no meaningful appeal. That's not the rule of law. And I think the reason the White House wants this so desperately is that they're afraid that finally a court is going to say what many experts have said, that the president didn't have the authority and that he may have committed a crime over 30 times.
And people like Senator Specter are going to face questions of, why didn't you ever investigate whether the president committed crimes, and what have you been doing for the last few years?
BROOKE GLADSTONE: All right. Jonathan, thank you very much.
JONATHAN TURLEY: It's my great pleasure.
BROOKE GLADSTONE: Jonathan Turley is a professor of public interest law at George Washington University.