January 20, 2006
This is the opening statement from the hearing immediately after the disclosure of the NSA program.
MR. CONYERS: Thank you very much, Mr. Bamford. As I predicted, Congressman Jerry Nadler came in from New York and is with us now. We appreciate your great efforts this morning to be with us.
I am now pleased to recognize Professor Jonathan Turley.
MR. TURLEY: Thank you, sir, and thank you and your colleagues for inviting me here to speak today with such a distinguished panel.
The disclosure on December 16, 2005, of the NSA operation has pushed this country deep into a constitutional crisis and one that there are, frankly, few parallels in our history. Our system of Government rests on a certain axis, a balance of power of a tripartite system, three branches, none of which have the authority to govern alone. In that system, the very scourge is a maximum leader. It runs against the constitutional grain. It creates a dangerous imbalance.
President Bush has for many years asserted authority that is both absolute and, in my view, quite dangerous. On August 1, 2002, there was the infamoustorture memo that was put out by the Justice Department that stated in significant part that the President could indeed order Government officials to violate Federal law. In fact, that memo said that imposing a limitation on his ability to conduct exercises – for people to conduct exercises that would constitute torture would be an unconstitutional infringement upon his inherent authority.
Attorney General Alberto Gonzales in his confirmation hearings insisted that he was rejecting that memo, although at the time, we now know, he was aware of an NSA operation that was based precisely on the same claim of authority.
The President has also claimed authority in enemy combatant cases to unilaterally declare a citizen to be an enemy combatant, to strip him entirely of his constitutional rights, including the right of access to counsel and the courts.
On December 30, 2005 – just recently – the President signed the torture bill that was enacted by this body and by the Senate. When he did so, he used what was a signing reservation, a signing statement, where he reserved the right to violate that law if he considered it to be in the
Nation’s interest. Now we know that there is an NSA operation based upon the same extreme theory of Presidential power.
The problem with these claims is that they’re devoid of any limiting principle. They place this country on a slippery slope that inevitably leads to a maximum leader.
Now, I read the document that was put out nyesterday by the Department of Justice, and I have changed my written testimony to address that document, and I have given copies of a longer statement to this body. If there is any doubt about how extreme these claims are, I suggest you read that document. But, frankly, what is most remarkable is not the sweeping claims of authority, but the conspicuous lack of authority to support those claims.
Now, in our system of separation of powers, the Framers designed what was a unique system, a system where no branch could govern alone. That creates an inherent tension that is healthy for a democratic process. There has never been a President that didn’t want to be Congress. Frankly, there has never been a Congress that didn’t want to be President. And, frankly, we have had judges that wanted to be both at times. But all of these branches have an institutional integrity and interest, and so they protect that delicate balance.
The Supreme Court has rejected the very claims being made by the President with regard to the NSA operation. This operation falls under what Justice Jackson referred to as the lowest possible exhibit in terms of executive authority. It is in direct contradiction of FISA.
Now, I want to be absolutely clear. What the President ordered in this case was a crime.
We can debate whether he had a good or bad motivation, but it was a crime.
Federal law makes it clear you cannot engage in this type of surveillance, in a domestic surveillance operation, without committing a crime and that you can go to jail for 5 years.
Now, we can debate the wisdom of that. We can debate why the President may have done it.
But, in my view, the President committed a crime, and we have to deal with that as citizens and, unfortunately, you have to deal with that as Members of Congress.
It gives me no pleasure to say that, but it also strikes me as an alarming circumstance when the President can go into a press conference and announce that he has violated a Federal statute 30 times and promises to continue to do so until someone stops him.
That’s the most remarkable admission I’ve ever heard from a President of the United States.
Now, the Federal law is clear because of the exclusivity provision under Title III. Title III says quite clearly that all surveillance done domestically must be done pursuant to Title III or to FISA, and then FISA makes it a crime to engage in this type of surveillance without a court order.
Now, this is the most user-friendly law a President has ever been given. FISA virtually is devoid of a basis to turn down the President. That’s why we’ve had over 13,000 FISA applications and only a handful of denials.
When I first went into the FISA court as a lowly intern at the NSA, frankly, it started a lifetime opposition for me to that court. I was shocked with what I saw. I was convinced that the judge in that SCIF would have signed anything that we put in front of him. And I wasn’t entirely sure that he had actually read what we put in front of him. But I remember going back to my supervisor at NSA and saying, “That place scares the daylights out of me.” And my supervisor said something interesting.
He said, “You know what? It is scary. But we’re here, the lawyers of the NSA” – I was a law student at that time – “and we won’t let things happen, we won’t let a President exceed his authority.”
Well, this President has exceeded his authority.
Under FISA there are three exceptions that allow the President to, in one case, engage in surveillance and proceed later to get approval. The suggestion that time was of the essence is a ludicrous one.
I have reduced the White Paper by the Justice Department into five central claims, all of which, frankly, I believe is meritless. The first and most important is that the President has inherent authority to violate Federal law and the Fourth Amendment. That is the most dangerous claim of all.
Historically, our most serious wounds as a Nation have been self-inflicted wounds. They have been done when we have been afraid. They have not been done by external evil forces. We did it to ourselves. And the way that that happens is when we remain passive and silent in the face of unchecked authority.
If you take a look at these claims – and I won’t go through them because time is limited here. I will simply remind this institution of its duty.
The Framers believed that, despite any affiliation to the President, Congress would jealously protect its authority. It’s a duty to protect a legacy that you were given and all citizens were given.
What’s at stake is not a President who has committed crimes. It’s much more serious than that. What’s at stake is a President who is committing crimes in a name or a pretense of legality. He is saying that he has the authority to do that.
Now, members that stay silent are making a choice. Very few members have faced this type of test of faith. But you are facing it now, and as citizens and as members, it’s now up to us.
We’re called to account to the many benefits that we have gotten from this system. We’re called to account to do something and not to remain silent.
I thank you very much for inviting me today.