Professor Turner served in various positions in the Reagan Administration, including as counsel to the President's Intelligence Oversight Board, and is currently a member of the Committee on the Present Danger, which lays in the belly of the neoconservative beast (Its Co-Chairs are John Kyl, Joe Lieberman, George Schultz and James Woolsey, and its other members include Midge Decter, Victor Davis Hanson, Newt Gingrich, Michael Horowitz, Clifford May, Daniel Pipes, Norman Podhoretz, Victoria Toensing and Ed Meese -- the list goes on and on like that, but you get the idea).
In December, Professor Turner wrote a widely celebrated (among Bush followers) Op-Ed in The Wall St. Journal praising the Administration's decision to eavesdrop in violation of FISA on the ground that Congress has no right to limit the President's eavesdropping activities. I'm definitely looking quite forward to the opportunity to have this discussion, particularly since Professor Turner has advocated a rather extreme (and pernicious) view of unchecked executive power. Here is a representative sampling from his Op-Ed:
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line. . . .
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
There certainly is a lot to chew on -- and debate -- there. Indeed, his Op-Ed recites virtually the full panoply of the most extreme pro-Bush law-breaking defenses. The good thing about the format for Washington Journal is that it's a 45-minute uninterrupted segment, so it provides ample opportunity for substantive debate, rather than exchanges of short, screeching sound-bites.
And there is a call-in segment, too, so anyone else who has questions for Professor Turner regarding his advocacy of a
Now THAT is going to be some good television.
ReplyDeleteI am DEFINITELY looking forward to THIS. I hope Professor Turner reads your blog because, if not, he's not going to know what hit him. Like all professors, I'm sure he assumes that he's the expert and will just pontifficate and everyone will give way to his superior knowledge. Boy is he in for a big surprise. LOL!!!!
Here is a question: if Congress cut off funding of the NSA, it would certainly interfere with intelligence collection. Would it be constitutional? Would it have been constitutional for Congress never to have authorized the creation of the NSA? Would it have been constitutional for Congress not to have funded satellites with cameras?
ReplyDeleteAs an aside, please try to avoid calling him a running dog lackey of the imperialist warmonger. I have tried that without success in a number of venues, and people do not see the Ann Coulterish humor. Maybe I will call in and give it one more try.
! WHITEHOUSE PROTEST!!FEB.4 @ 11AM!!
ReplyDeleteIn the DC area? Come and show your support! Let C-span know you want to see it live if you can't attend!
http://worldcantwait.net
Turner: "For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution."
ReplyDeleteCould someone *please* hold him to account for this?
Art. II, Sec. 1 says NOTHING at all about intelligence collection or even the armed services. All Section 1 does is lay out the manner in which the President will be chosen, and that he will take an oath to "protect, preserve, and defend the Constitution".
God, these lying idiots drive me up a frickin' wall.
Here are two more, designed to reinforce the unbounded nature of the claim of absolute authority:
ReplyDeleteThe Fourth Amendment prevents searches without a warrant issued on probable cause. The Supreme Court has held that this provision applies to telephones. How does the "professor" reconcile these conflicting claims of the Constitution?
Suppose the president decides we need to spend money on some new intelligence technology. Congress refuses to exercise its constitutional authority to appropriate money for the technology. How does the running dog lackey of the imperialist warmonger reconcile these conflicting constitutional claims?
I certainly look forward to it. But one thing I do somewhat agree with Turner about. He wrote: those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country.
ReplyDeleteDean and some others -- and I've seen it in the blogosphere as well -- are campaigning on this Nixon and his enemies list thing, and that is a huge, huge mistake. There is no evidence that Bush has done anything other than eavesdrop on people whom he thinks are somehow helping terrorists. But he is breaking the law, and has lied to Congress, even if he has not committed other abuses in doing so. It is the law-breaking, lying to another branch of govt, and arrogation of unchecked power that are at issue, and this Nixon meme is a loser which distracts from the real and grievous problems.
The public is never going to buy that the NSA warrantless surveillance is akin to the wholly venal and corrupt Nixon antics. And that is not how the issue should be framed. Indeed, it is a distraction and gift to Bush.
Turner ignores "Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" and the preceding power in "Clause 14: To make Rules for the Government and Regulation of the land and naval Forces."
ReplyDeleteAlthough the Fourth Amendment has no "appropriate legislation" clause within it, FISA is authorized by the Article I clauses above. The final arbiter of cases and controversies under it will be the Article III courts, as even Turner concedes.
Criminalizing most warrantless electronic surveillance can run afoul of the traditional doctrine of impeachment first as to the President, despite the meme of "no one is above the law," but the fear of prosecution lower in the ranks has, to me, a benign effect.
I do not know any amendment history of the 1947 act, but Turner's statement about it certainly contradicts what I have read about its current notification requirements and the albeit belated protests of minority members that it is being violated.
Looking forward to that debate!
ReplyDeleteEspecially as I missed the Air America spot - owing to a brain cramp on the EST (program) v CST (me).
*sigh*
The fact that the 4th Amendment prohibtion against warrantless search was created during the most significant WAR that lead to the formation of the United States - it's hard to reconcile the Prof's views with that explicit 4th amendment language limiting the government and president's powers from its very inception as a country - NOT as a result of reationary unconstitutionalism over reaching of Congress generated by a backlash to the Vietnam War and Watergate.
Bleh! makes yer head spin.
Anyone got any updates on either of the legal cases filed (ACLU or the Center for Constitutional Rights) and if they have passed the *standing* hurdles? Or Any update at all on those issues?
Also looking for a link to the recently released US Dist Ct. of Appeals documents mentioned in this WaPo article.
Anyone got a link to a PDF or the actual document for review? Love to read it.
And Elizabeth de la Vega (Tom Dispatch):
When Two Worlds Collide - Rove v. Fitzgerald
It is GREAT. Give it a read and it should warm your Rule-of-Law heart that Rove will be NEXT.
:-D
hypatia wrote:
ReplyDeleteDean and some others -- and I've seen it in the blogosphere as well -- are campaigning on this Nixon and his enemies list thing, and that is a huge, huge mistake.
Not if you ask, "What is keeping Bush (or any other president) from acting against his enemies if there is absolutely no oversight of these activities?"
zack writes: Not if you ask, "What is keeping Bush (or any other president) from acting against his enemies if there is absolutely no oversight of these activities?"
ReplyDeleteAnd they'll say "We have internal audits, AG reauthorizes, we inform a handful of members of Congress of both parties blah, blah." And the whole debate gets focused on whether Bush is or is not spying on his enemies, when there is no evidence that he is.
That is not what is wrong with what he is doing. It doesn't matter if he is operating this warrantless surveillance as Mother Theresa would. It is illegal. He lacks all authority for it. He is flouting and lying to Congress. That is what is all demonstrably true, and is wholly sufficient reason to demand that it stop.
Invoking Nixon and claiming that that is what Bush is all about in this matter makes the issue dismissable as moonbat ranting. It is too important for that.
Invoking Nixon and claiming that that is what Bush is all about in this matter makes the issue dismissable as moonbat ranting. It is too important for that.
ReplyDeleteI agree and disagree with you in this regard: There is no point in talking about eavesdropping abuses now because: (a) we have no evidence at all yet that there was abuse (not necessarily because there hasn't been any, but because it's still a secret how they used this eavesdropping power) and (b) the scandal, as you point out, is that the law was broken, regardless of whether it was used for good or bad purposes, and emphasizing abuse distracts from that and can even backfire.
But - Nixon was not only notorious for eavesdropping abusively, but also for believing himself to be above the law. He was a believer in an Executive so powerful that the actions of the Executive defined the law, as he famously told David Frost. In that regard, this scandal is redolent of Nixon - not because of eavesdropping abuses (yet), but becasue we have a President, like Nixon, who believes that under our system of Government, the President's actions are, by defintion, legal.
With Bush followers deceitfully trying to make this scandal be about whether we should be hang up when bin Laden calls, it is necessary for Bush opponents to have some shorthand which resonates with the public, and Nixonian lawlessness is both a powerful and fair image to use (particularly fair when judged by Bush's standards of debate fairness, but also fair, for the reasons above, in its own right).
So I would assume that another blatantly unconstitutional statute would include the entire Uniform Code of Military Justice.
ReplyDeleteThe question I have is whether this immunity to interference extends to the other branches. For example, if Congress wants to involve bribery as part of their process what right does the executive branch have to investigate and prosecute this? After all, the Constitution gave each house of congress the right to make its own rules. Wouldn't this unitary executive argument, if extended, imply that the interior rule making, and not the legislative process be the proper venue to deal with such corruption?
Deeply sorry to have missed this. Is it to be rebroadcast, or is it online anywhere?
ReplyDeleteThanks so much for your work, Glenn.
Glenn writes:
ReplyDeleteWith Bush followers deceitfully trying to make this scandal be about whether we should be hang up when bin Laden calls, it is necessary for Bush opponents to have some shorthand which resonates with the public, and Nixonian lawlessness is both a powerful and fair image to use (particularly fair when judged by Bush's standards of debate fairness, but also fair, for the reasons above, in its own right).
I don't think we are really in much disagreement (at least not on this!). The purpose of FISA in the first instance was to prevent the sorts of abuses Nixon committed. But I'm doubting Bush has used the warrantless surveillance program for such venal reasons, because otherwise the leakers (who all belong in prison or should be summarily executed) would have said so. The NYT would have reported it; Russell Tice would be saying so.
I don't want the debate to be framed around Nixonian spying on enemies, because I do not want it resolvable by the Administration simply and vehemently denying that it is doing that. Gen. Hayden will swear it ain't so, and if no Comey or other dissenter supports the allegation, that is that. The wrong argument gets resolved in Bush's favor.
But it is true that Bush could be spying on his political enemies, because he is flouting the law that was meant to prevent that via the establishment of judicial oversight. He won't be President forever, and even if he doesn't abuse the NSA program, another Nixon could come along. This "my will is law" doctrine has to be stopped, even if the current dictator is arguing that he is benign.
In any event, he is behaving lawlessly, and that is Nixonesque. I agree. But I really would avoid the "enemies list" thing as any sort of direct focus on what Bush is doing, and we seem to agree on that.
Good wishes go with you Glenn. I am disheartened, but not surprised, to read your assessment of the spinelessness of our Democratic Senators. They, too, seem to have no notion of protecting and defending the Constitution.
ReplyDelete"but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country."
ReplyDeleteAbsolutely, but get a warrant. They all want to frame the argument like this.
Not a legal point, but one that will play to the audience:
Should Prof. Turner insist that "the program has sufficient oversight" in the Exec. branch, as a counter argument to the "who's checking up on this, if not the courts?" question, would it be prudent to have on hand a comprehensive list of the numerous instances of this Admin.'s witholding of information and unprecedented affinity for secrecy: i.e. refusing documents to Congress re 9/11, Katrina, build-up to Iraq2 war, etc. and the re-interpretation of FOIA parameters? This all goes to the matter of trust, and the latest poll put that as 53% of Americans do not trust Bush.
Glenn, expect some nastiness from the call-in segment. Keep your cool.
Glenn,
ReplyDeleteThese guys keep citing In Re Sealed Case dictum for the proposition that FISA's restrictions on the president are unconstitutional and so I'm sure you'll hear that from the UVA guy. I think this argument is nonsense not just because the cases the In re Sealed Case relied on are Jackson category II cases pre-dating FISA, but more importantly because I don't think the In Re Sealed Case language can plausibly be read to mean what the administration's defenders think it means.
For some reason, however, critics of the administration seem to be conceding this point -- in other words conceding that In Re Sealed Case dictum does say that FISA restrictions are unconstitutional, but that the court was just wrong and that it's dicta so it doesn't really matter.
Here's what the case says in relevant part:
"Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n. 4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. FN26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that
authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify
the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that
FISA searches are constitutionally reasonable."
opinion at 48-49.
http://news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf
Now as I read that, it seems to me that all the court is saying is that Congress cannot by statute lower the bar on what constitutes a 4th amendment violation. If the president doesn't violate the 4th without warrants in the absence of Congress on foreign surveillance wiretaps, Congress's implementation of a warrant regime in FISA wouldn't make it now a 4th amendment violation.
The key is really in the next sentence that nobody quotes,
"The question before us is the reverse, does FISA amplify
the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that
FISA searches are constitutionally reasonable."
The whole thing has to do with the 4th amendment, and obviously nothing to do with Justice Jackson article II arguments. If the "reverse" is amplifying powers in terms of the 4th amendment, all the quoted sentence means is that FISA's warrant regime doesn't lower the bar on 4th amendment violations. The sentence therefore has nothing to do with the exclusivity provision and it doesn't mean that Congress couldn't disable the executive from acting at all under the enumerated authority of article II. Just because it doesn't violate the 4th, doesn't mean that he has the power to act under article II any more than just because the steel seizures might not violate the 5th amendment, it would would be upheld under article II.
But if this reading is correct, why isn't this point made more often? For instance, in the latest response from the 14 con law scholars, they say this:
"The court in that case [In Re Sealed Case] suggested in dictum that Congress cannot 'encroach on the President's constitutional power' to conduct foreign intelligence surveillance. But this statement cannot bear the weight the DOJ would assign to it. First, the court in that case upheld FISA's constitutionality, so its holding precludes the conclusion that any regulation of foreign intelligence gathering amounts to impermissible 'encroachment'."
Letter at 9.
http://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf
The letter goes on to talk about the fact that Truong etc. were pre-FISA, a good and obvious point. But why aren't they discussing the argument more clearly that the language in the opinion couldn't possibly mean what the administration says it means, even if it weren't obviously incorrect and dicta? And as I recall, Lederman at least initially seemed to concede that the dictum meant what the administration's supporters said, but that it was written by Silberman and he was anti-FISA etc. That maybe true too, but I don't see why he and others seem to concede that the language could have meant to say that, even if it were obviously wrong and only dicta.
Orin Kerr does seems to get it in his response to Robert Turner on Volokh:
"As for the 9 words of dicta from In re Sealed Case — 'FISA could not encroach on the president's constitutional power' — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case."
http://volokh.com/archives/archive_2005_12_25-2005_12_31.shtml#1135893533
The latter is obviously right by any sensible reading. But notice that even if it isn't, the other argument would then seem to be that FISA restrictions would be unconstitutional over-enforcement of the 4th amendment, something that seems quite odd, and in any event is not really the argument anybody seems to be making. The arguments for FISA's unconstitutionality are not made in terms of it being unconstitutional over-enforcement of the 4th. And even if they were, is there any case law saying the 4th is ceiling and not a floor?
Any thoughts?
karen mcl -
ReplyDeleteemptywheel at The Next Hurrah has been doing excellent work on Plame.
She links to the DC Court of Appeals decision you are looking for in this post.
Do these people actually read the Constitution? Professor Turner asserts that...
ReplyDeleteFor nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
Problem is, Article II Section 1 of The Constitution describes how the President is elected, that's all.
He obviously meant to reference Article II Section 2. which states...
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
So an easy way to knock these guys off their game is to simply point out that they can't count to 2.
The second fact is that the Constitution doens't mention anything about the President and Intelligence. Nothing. All it says, as noted above, is that the President is "Commander in Chief". But the argument that all powers contained in that title (which would include espionage and counter-espionage during war) are not subject to oversight or control by Congress become clearly specious when you take into consideration Article I Section 8 Paragraph 14 which grants to the Congress the power...
To make Rules for the Government and Regulation of the land and naval Forces;
So in simple laymens terms the Congress makes the rules as well as all those pesky laws. The President is charged with Executing those laws, rules and regulations, not re-writing them on the fly.
Turner Continues..
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant.
NSA as a part of the DOD, would be considered part of our "Land and naval forces" - therefore under Article II Section 8, FISA should be entirely legal, in my laymans opinion.
The arguement that Presidential Powers in a time of war are unlimited has been disproven by the courts numerous times. And if "Enemies List" arguments are so far off base, why is the FBI Swamped with bogus NSA leads and the DIA targeting Greenpeace and PETA?
Anything wrong with my reasoning?
Vyan
In effect, the White House and its supporters are arguing that when the nation's military forces are in use, a state they call "war," the President has the right to suspend various parts of the Constitution, e.g., the Bill of Rights and the Supremacy Clause regarding the status of ratified treaties. But why stop there? Perhaps it is the President's judgement that 2008 isn't an appropriate time to hold further elections -- that suspending them is necessary for the protection of the American people.
ReplyDeleteWhat a poor damage control artist you are!
ReplyDeleteWhat do you have to say about Jamie Gorelick/FISA and ABLE DANGER?
Maybe you can blog better than you handle c-span calls.
Do you find it curious that this story came out in the news at the same time hearings for ABLE DANGER were OK'd?
Do you ever wonder WHO was involved in this leak about FISA?
Have you ever read anything by Gorelick about the president's authority?
Wouldn't Gorelick be in a great position to have FISA secrets?
WHY was Gorelick on the 9/11 Commission? DO YOU think there is any reason WHY she shouldn't be on that commission?
Do you know who D. Snell is and WHY he matters?
WASN'T FISA THE REASON GIVEN BY SOCOM LAWYERS THAT DID NOT LET ABLE DANGER GIVE INFO TO THE FBI?
Do you know WHAT Mary Jo WHite has said?
What about Louis Freeh?
You don't give a crap about spying Glen... you could have talked for hours about Clinton's abuses(carnivore? www.epic.org/privacy/carnivore/)... BUT, you had NOTHING to say about those serious problems because you're a political hack.
Clinton spying, plus he uses tanks on American men, women, and children.
Bush is trying to spy on terrorist.
Look at what gets you to go on C-span. You will be the 'comedy' blog coming out of those hearings.
You going to the ABLE DANGER hearings? LMAO... What a hack!
I couldn't believe that Turner was a professor at UVA. What a nut job... I guess the bar has been lowered at UVA for law faculty.
ReplyDeleteI only saw the part of your clip where you explained how this is an AMERICAN scandal and whether we are going to live by the rule of law or not.
ReplyDeleteYou did an incredible job. I hope I see you on more talk shows.
I do have a question though that I haven't seen come up. If Bush is only ordering these unwarranted wire taps on "non-domestic" calls....who is watching the domestic calls that are happening between terrorists? We're most of the pre-9/11 calls domestic? Are the terrorists here only calling out of the country and not talking to each other? If he is getting warrants for those, why isn't he getting warrants for the other calls?
Glenn, I think you did an excellent job on the program. This is the kind of reasoned argument we need in the Democratic Party.
ReplyDeleteI was able to watch this after-the-fact off C-Span's web site. They even separated out the debate between the two of you in a separate file.
rtsp://video.c-span.org/project/ter/ter_wj020606_surveillance.rm
I saw your C-SPAN appearance with Prof. Turner. You did an excellent job.
ReplyDeleteI suspect that Turner has had a lot of influence on the WH spin on this domestic surveillance business. I suspect that rather than parrotting WH talking point, he is authoring them.
If I correctly understand Turner's argument, it is that in making the President Commander-in-Chief of the military, the Constitution not only gives the President the right to shoot the enemy but (implicitly) it gives him the authority to find out who and where the enemy is. So far so good. But he then leaps, as does John Yoo, to the unsupported assumption that the implied inherent power is to find out such information by any and all means,
including crushing the testicles of the child of a person suspected of having such information.