George Washington University law professor Jonathan Turley has served as counsel in a variety of national security cases. He says the new FISA law puts extra pressure on media outlets because they're the only form of oversight left when it comes to wiretapping.
BROOKE GLADSTONE: Jonathan Turley is a law professor at George Washington University who has also served as counsel in a variety of national security cases, including a current one seeking information on the classified surveillance program from the government. He says that the new FISA law puts extra pressure on news outlets because they're the only overseers left. JONATHAN TURLEY: Before, we did have one of three branches that was functioning. The judicial [LAUGHS] branch was, in fact, looking into the legality of the program and exploring the possible injuries that had been done to citizens. What Congress effectively did is it shut down that last branch. BROOKE GLADSTONE: But under this bill, are the telecom companies protected from future litigation? Clinton National Security Advisor Nancy Soderberg says that the new bill lets the companies off the hooks for their past actions but it won't allow repetitions of that wrong. They could still be charged, right? JONATHAN TURLEY: [LAUGHS] Yes, but it’s not much of a distinction because the law also allows the president to engage in warrantless surveillance and makes the process very, very easy. There’s no reason for him to repeat exactly what he did before. It’s like solving bank robbery by simply taking all the doors off the bank. BROOKE GLADSTONE: [LAUGHS] JONATHAN TURLEY: So we really aren't likely to see telecoms ever prosecuted because the Congress just created a law that is almost impossible to violate. BROOKE GLADSTONE: But it isn't exactly the end of lawsuits. I mean, already just this past Thursday the ACLU had filed one arguing that the new FISA law is unconstitutional. JONATHAN TURLEY: Well, perish the thought that we'd ever have the end of lawsuits. BROOKE GLADSTONE: [LAUGHS] JONATHAN TURLEY: But I'm afraid I don't have great expectations for the ACLU lawsuit. I do respect them for filing it. But Congress has shown that it is not willing to let an independent court system evaluate the legality of this program, a program that both Democratic and Republican leaders knew about years ago.
So even if you have a successful lawsuit, now lawyers are going to basically tell their clients, look what happened. There were 40 [LAUGHS] lawsuits that were succeeding in court. We just had a ruling by a court that this entire program was unlawful. And what was Congress' response? They changed the law and terminated all 40 lawsuits. BROOKE GLADSTONE: So explain to me how this new FISA bill matters to journalists. JONATHAN TURLEY: Ironically, it makes journalists more important than they've ever been. I think if you objectively look at the last few years, you would have to call this the golden age of investigative reporting, because we've seen journalists uncover things like the secret camp system, the torture program, the NSA surveillance program. These were enormous disclosures for the public.
And when you put all these things up on the board, you’re [LAUGHING] struck by one salient fact, and that is virtually all the progress [LAUGHING] we've made in the last few years has nothing to do with Congress or the courts. And that should worry us, and it also puts a great deal of pressure on journalists now.
And we know a few years ago the Bush Administration was pushing for the prosecution of journalists, and I expect we're heading into a confrontation, 'cause journalists tend to step forward when they sense this vacuum. But, more importantly, whistleblowers tend to come forward when they don't see any alternative. BROOKE GLADSTONE: It’s funny you should mention this, because the Senate Majority Leader Harry Reid announced just at the end of this week that the Senate is looking into legislation that would shield reporters from having to reveal their anonymous sources, at least in certain cases, and that he wants to do this before the August recess.
Now, this shield law issue has become something of a hardy perennial, like roses. [LAUGHTER] But is there any particular relevance here to the new FISA bill? JONATHAN TURLEY: It has never been more important. Imagine if reporters didn't do what they've done in the last few years. Imagine if The New York Times didn't reveal the domestic surveillance program. Clearly, Democrats and Republicans knew about it, and so they were not about to reveal it. BROOKE GLADSTONE: Well, Jonathan, imagine if The New York Times didn't reveal it. Then Congress wouldn't have had to pass a bill that more or less rubber stamps it [OVERTALK] JONATHAN TURLEY: You know, though BROOKE GLADSTONE: is what you’re saying. JONATHAN TURLEY: I do. But I have to say that there is a value to forcing Congress to take this type of action. It’s a good thing when reporters force members of Congress to come out and say, I'm going to extinguish 40 public interest lawsuits. I’m going to cut away part of the Fourth Amendment. I'm going to give retroactive immunity to an industry. It’s not a good thing in its result, but it’s a good thing that the public can see it.
And perhaps the most important thing that reporters do is to allow the public to judge the conduct of its government. BROOKE GLADSTONE: Alright. Jonathan, thank you very much. JONATHAN TURLEY: Oh, it’s my great pleasure. BROOKE GLADSTONE: Jonathan Turley is a professor of public interest law at George Washington University. [MUSIC UP AND UNDER]