The NSA’s warrant-less wiretapping program has generated the first of what are likely to be many legal challenges. The ACLU accuses the government of violating the constitutional rights of a group of academics, activists, and journalists, all of whom believe they may have been monitored. But lawyer Jonathan Turley tells Brooke that while the plaintiffs may generate sympathetic headlines, they are far less likely to succeed than are several accused terrorists who are also challenging the NSA program.
RICK KARR: From WNYC in New York, this is NPR's On the Media. Bob Garfield is out this week. I'm Rick Karr.
BROOKE GLADSTONE: And I'm Brooke Gladstone. This week, the first of what's likely to be many legal challenges to the NSA spying program. On Tuesday, the American Civil Liberties Union and the Center for Constitutional Rights each filed civil lawsuits charging the government with violating the constitutional rights of a group of lawyers, academics, activists and journalists. The plaintiffs can't prove that they were the targets of the secret surveillance but insist that because of the type of people they routinely communicate with, they have good reason to believe they have been monitored. Meanwhile, a number of criminal defendants are asking if the NSA wiretapping has been wrongfully used against them. Constitutional law professor Jonathan Turley is among those who think the Bush Administration severely overstepped its bounds with the NSA program, and said as much in a Democratic Congressional hearing on Friday. Turley is also involved in one of the prominent criminal cases I just mentioned. Jonathan, welcome back to the show.
JONATHAN TURLEY: Thank you very much.
BROOKE GLADSTONE: So let's talk first about the ACLU lawsuit. The big question here seems to be what gives these folks the standing to sue if they have no actual evidence that they were harmed by the NSA program?
JONATHAN TURLEY: Well, that is the threshold question for that suit. In order to bring a lawsuit, you have to show injury. And the most obviously injured parties are those people who are suspected of terrorism. That was the focus of the operation. The ACLU clearly did not want those types of plaintiffs. They went with groups like Greenpeace. But in doing that, they dramatically increased the chances that the suit could ultimately be dismissed on standing, and many of us were surprised that they went with this array of plaintiffs. The great problem in all these cases is that the government can play a certain tactical game. It can refuse to confirm or deny that someone was a target of the operation and then claim that your case is based purely on speculation. But the ACLU picked the most difficult way to bring a case like this one.
BROOKE GLADSTONE: So you've taken the exact opposite route. You're representing a criminal defendant, a Virginia Islamic scholar named Ali Al-Timimi. Tell me about that case.
JONATHAN TURLEY: Well, Dr. Al-Timimi was a controversial case even before the NSA operation because it was a case involving what's called "violent speech." He was convicted based on statements he made at a dinner party, a private dinner party, a few days after 9/11. And those comments that he gave regarding what Muslims should do after 9/11 – [BOTH AT ONCE]
BROOKE GLADSTONE: He said they should go abroad and take arms against the United States.
JONATHAN TURLEY: Well, that's what the government witnesses said is that his statements involved, in part, a suggestion that they could go to places like Afghanistan. Now, the United States wasn't in Afghanistan at that point, but it was known that we well could invade Afghanistan. Ultimately he was convicted of 10 counts based upon those statements, and given a life sentence. Now, the trial judge herself said she thought that that sentence was wildly inappropriate and excessive, but that she had no choice under the sentencing laws. So what's at issue with Dr. Al-Timimi – put aside the NSA operation – is the question of free speech. To what extent can the government criminalize statements that you made, statements that are critical of the government itself or its policies?
BROOKE GLADSTONE: And now explain how the NSA program figures into this. You're charging the government with failing to produce all examples of the intercepts they had of Al-Timimi, which they're required to do under law.
JONATHAN TURLEY: Well, the case of Dr. Al-Timimi may be unique in the sense that since it's a pure speech case, what he has been saying is vitally important to the case and to his defense. Dr. Al-Timimi insisted that the intercepts submitted by the government were wildly misleading, and he sought any intercepts that the government had, because he insisted that he has repeatedly opposed violence and repeatedly called for moderation. What the government said here was, "No. There's no further evidence. There's no other intercepts."
BROOKE GLADSTONE: And you know, or you strongly suspect, that the secret NSA wiretapping affected Al-Timimi's case.
JONATHAN TURLEY: Most independent observers believe that Dr. Al-Timimi was a very likely subject or target of the operation. He was involved in a great number of international calls to countries that were targeted by this operation and the government has said that it suspected him, although it never really did show connections to al Qaeda. If indeed, as many believe, Dr. Al-Timimi was a target of the operation, it means that the government misled the trial court. It can withhold evidence. It can say, "We don't believe this evidence should be allowed into trial," but it has to honestly answer the court when it's asked if there are other intercepts in the government's possession.
BROOKE GLADSTONE: So it's a good case to show harm. On the other hand, he's a lot less sympathetic a figure than the ones who are listed in the ACLU case.
JONATHAN TURLEY: You know, many of our most important legal cases were brought by very unpopular people. That's the nature of the law. The government generally doesn't proceed against popular people.
BROOKE GLADSTONE: You know, one of the reasons why we focus so much on the NSA spying program is because of the sorts of things that the ACLU's plaintiffs are suggesting, that there is a chilling effect. Do you think that that's a side issue here; that really the issue is simply equal protection under the law?
JONATHAN TURLEY: Well, I think it's an important issue. I mean, in defense of the ACLU, they make a very good point. The main concern that we've had historically is how government surveillance changes us as a society. I mean, to give you a very simple example, when I teach the subject to my students, I tell them during the break to go home and put an empty tape recorder on a table and just tell whoever they're talking to that this is an exercise and only they will listen to the tape, and see what happens. Even though you're the only one who will hear the tape, suddenly the person you talk to talks in complete sentences, becomes incredibly eloquent and precise. When you think you may be under some form of monitoring, it changes the way you do things. Now, for lawyers and for journalists, the absence of confidentiality is a denial of our very function. We can't do what we do as reporters or lawyers if the government can, on its own discretion, intercept our communications.
BROOKE GLADSTONE: All right. Jonathan Turley, thank you very much.
JONATHAN TURLEY: Oh, it's my great pleasure.
BROOKE GLADSTONE: Jonathan Turley is a professor at the George Washington Law School. He's representing Ali Al-Timimi, who is appealing his life sentence for inciting his followers to violence.