Category: Constitutional Law

Congress, Constitutional Law, Justice, Military

A War With All Flags and No Faces: Cracking Down on War Protesters

Published 8/16/2006

Dan Frazier seems an unlikely sort to spark a national firestorm. The soft-spoken former journalist runs a left-leaning website in Flagstaff, Ariz., offering political T-shirts and other items with such slogans as “Be Nice to America or We’ll Bring Democracy to Your Country.” It was one T-shirt, however, that made Frazier the Thomas Paine of the ready-to-wear rebel set. Last year, Frazier produced a T-shirt that read “Bush Lied … They Died.” He then listed the names of the fallen in Iraq: at the time 1,700 names (more than 800 short of the latest total).
One of those names belonged to Marine Cpl. Scott Vincent, who was killed in April 2004 by a suicide bomber. When his mother, Judy Vincent, saw her son’s name on the T-shirt, she was outraged and demanded legislative action in her state of Oklahoma. Various state legislators promptly made it a crime to use a soldier’s name or likeness for commercial gain without consent. Louisiana followed suit, and other states are considering such bills. Now, U.S. Rep. Dan Boren, D-Okla., has introduced a federal bill that would prohibit the use of the name or image of any current or former member of the military without permission.

The federal and state legislation raises serious constitutional questions.

In direct conflict with the First Amendment, the federal law would effectively prevent war critics from personalizing the true costs of the war. It is far more powerful for Frazier to say “Bush Lied … They Died” than the more common “Bush Lied … People Died.” It is precisely the type of personalization that war advocates have tried to prevent. Continue reading “A War With All Flags and No Faces: Cracking Down on War Protesters” →

Congress, Constitutional Law, Politics, Supreme Court

Afffirmative Action and the Use of Race in Government Regulations

Published 12/5/2006

On Monday, the Supreme Court once again ventured into the quagmire of affirmative action. In two cases, the court will decide whether it is permissible to use race as a criteria in the selection of students on the elementary or high school levels — three years after the court barely sustained the use of such policies on the university level.
Even after many decades, affirmative action remains one of the most contentious issues in our society. Yet, like abortion, there appears to be less, not more, true dialogue. Many people who are uncomfortable with these programs remain silent in fear that their concerns will be misconstrued or mischaracterized. Continue reading “Afffirmative Action and the Use of Race in Government Regulations” →

Congress, Constitutional Law, Politics

The Truth About The Oath — Keith Ellison and the Quran

Published 1/3/2007

By Jonathan Turley
The newest member of the Minnesota delegation, Keith Ellison, would appear to be the very model of a god-fearing congressman whom conservatives have longed for. Yet Ellison has been denounced as a constitutional blasphemer after discussing his upcoming oath of office. The problem was not with Ellison’s oath, but with his god — Ellison is Muslim (our nation’s first in Congress) and intends to use the Quran today to pledge to serve faithfully before Allah.
Judging from the outcry, one would think that Ellison wanted to use the January edition of Penthouse. America’s permanently angry class of religious zealots has organized protests. Some have called for a law requiring that all members use the Bible — regardless of whether they believe a single word in it. They do not expect Ellison’s conversion, they just want him (and presumably the two new Buddhist members) to pay tribute to their faith system. Continue reading “The Truth About The Oath — Keith Ellison and the Quran” →

Congress, Constitutional Law, Military

Can Congress Stop This War? You Bet.

Published 1/17/2007
Over the next week, Congress will vote on a non-binding resolution denouncing President Bush’s decision to send more troops to Iraq. Many people have already noted that with thousands of dead soldiers and hundreds of billions of dollars lost, Congress might be able to manage more than a legislative “Dear John” letter. Yet, if you listen to the president and some Democratic leaders, Congress can do little to stop the hemorrhaging of lives and treasure.
The truth is that there is a lot that Congress could do. Among other things, it could stop the war. But neither the president nor many Democrats want to publicly entertain such a possibility. Indeed, the president has insisted, again, that he alone makes such decisions. When asked about what Congress can do if it opposes his build-up, Bush was dismissive and said, “Frankly, that’s not their responsibility.” Of course, the president acknowledged, “They could try to stop me from doing it … but I made my decision, and we’re going forward.”

Democratic leaders seem to be encouraging the same view of an unchecked executive. The new chairman of the Senate Foreign Relations Committee, Sen. Joe Biden, D-Del., and other members suggested last week that it may be unconstitutional for Congress to cut funds for an escalation. Continue reading “Can Congress Stop This War? You Bet.” →

Congress, Constitutional Law, Military, Politics

War and Presidents: Military History Magazine Cover Story July 2007

PRESIDENTS AT WAR

The President sat in the Oval Office and staring intently at his Secretary of State. It would fall to him to either order the United States to war or to consult with Congress. He had already stated his intention to fight the enemy anywhere in the world to protect the nation at home. It was time to make good on his promise: “We’ve got to stop the sons of bitches, no matter what, and that’s all there is to it.”

It is a scene that could have been taken easily from the first term of President George W. Bush and his commencement of military action in Afghanistan and Iraq. However, it was not Islamic terrorists but communists that was the scourge in June 1950 and the president was Harry S. Truman. He was committed to the Truman Doctrine to oppose communist expansion around the world and 135,000 communists were on the march across the 38th parallel. It was a decision that would unleash the Korean War. Within days of Truman’s statement, the Army 4th Infantry Division would engage the North Koreans at Osan, suffering heavy losses – all without congressional notice, let alone authorization. Continue reading “War and Presidents: Military History Magazine Cover Story July 2007” →

Congress, Constitutional Law, Supreme Court, Testimony

Testimony on Kelo and the Supreme Court’s Eminent Domain Ruling in Kelo

STATEMENT OF JONATHAN TURLEY, PROFESSOR OF PUBLIC
INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL
SEPTEMBER 7, 2005

House Agriculture Committee

Mr. TURLEY. Thank you very much, Mr. Chairman. It is an honor
to appear here before the members of this committee.
As we all know, there is a firestorm of controversy of the Su-
preme Court case, which I also believe was wrongly decided, even
though I have argued in the past, in academic pieces, for the ex-
pansion of public use. In some context, I thought this decision was
facially wrong, and I don’t see how the Court came to its conclu-
sion, which required it to negate portions of the takings clause, to
effectively make them nonexistent. The clause makes a reference to
public use. We interpret constitutional amendments so that words
mean something. And in this case, the public use reference didn’t
even amount to a speed bump for the Court on its way of effectively
negating the protections of the clause. Continue reading “Testimony on Kelo and the Supreme Court’s Eminent Domain Ruling in Kelo” →

Congress, Constitutional Law, Politics, Testimony

Clinton Impeachment Testimony: House Judiciary Committee

Testimony of Jonathan Turley
Shapiro Professor of Public Interest Law, George Washington University Law School

House Judiciary Committee Subcommittee on the Constitution
Hearing on the Background and History of Impeachment
November 9, 1998

INTRODUCTION

Summary: My name is Jonathan Turley. I am a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law. Although I have taught constitutional criminal procedure and lectured on the Madisonian Democracy for years, my views have been most influenced by my litigation in past cases dealing with the separation of powers doctrine, executive privilege, and Article II authority. While the current debate over the impeachment standard can appear arcane and theoretical, these standards have concrete expression in cases involving the lives of average citizens and the conduct of Executive Branch officials. When Congress decides that certain criminal conduct does not rise to the level of impeachable offenses, it is defining a permissible parameter for future presidential conduct. Executive power will fill the space created by any decision of this body………………………………………Page 6

METHODOLOGY

Summary: While I greatly respect the academics on the other side of this debate, I do not believe that there is a basis to exclude the alleged criminal conduct from potential articles of impeachment on any definitional, historical or policy basis. The literature in this area is rich with different theories of constitutional interpretation. There is a danger when these theories are super-imposed on a sparse historical record to advance a claim of clear original intent or restrictive hidden meaning. As will be shown, the meaning of “high crimes and misdemeanors” is inextricably linked to the structural function of the House. Impeachment was created as a process by which the public could address serious questions of legitimacy in the Chief Executive and other officers. It was a process by which illegitimacy could be remedied by removal and legitimacy could be redeemed by acquittal. This is why criminal acts committed in office, regardless of their motivation or subject matter, should ordinarily be submitted to the Senate……………Page 9 Continue reading “Clinton Impeachment Testimony: House Judiciary Committee” →

Congress, Constitutional Law, Testimony

Senate Testimony: National Security and Civil Liberties

STATEMENT OF
PROFESSOR JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.

BEFORE
THE SENATE JUDICIARY COMMITTEE
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY, AND HOMELAND
SECURITY

“A REVIEW OF THE TOOLS TO FIGHT TERRORISM ACT”

SEPTEMBER 13, 2004

Thank you, Mr. Chairman, it is an honor to appear before the Subcommittee
and to discuss the provisions of the Tools to Fight Terrorism Act of 2004. Continue reading “Senate Testimony: National Security and Civil Liberties” →

Congress, Constitutional Law, Justice, Military, Testimony

Testimony in Senate Intelligence Committee on Abuses By Naval Intelligence and the Daniel King Case

PREPARED STATEMENT OF
JONATHAN TURLEY
LEAD DEFENSE COUNSELFOR PETTY OFFICER DANIEL M. KING

SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

Thank you, Mr. Chairman.
Mr. Chairman, members of the Subcommittee, my name is Jonathan Turley. I currently represent Petty Officer Daniel M. King and I served as the lead defense counsel for Petty Officer King during his prosecution for alleged espionage. I am also a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law.

I greatly appreciate your invitation to discuss the King case. As a defense attorney and an academic in the national security field,1 I have never encountered a more troubling case. My co-counsel and I were formally invited to testify late last week and have attempted to assemble a comprehensive presentation of the facts in this case over the weekend. Each of our statements today will isolate different aspects of these facts. Like my colleagues, I wish to associate myself with their formal statements as part of our unified presentation. After discussing the charges and basic evidence in the case, my comments will focus on the areas previously identified by the Committee as the subject of today’s hearing. LT Matthew Freedus will then offer a detailed presentation of the facts in this case and the course of the investigation and prosecution. LT Robert Bailey will then detail the specific violations and abuses that have been identified and made part of the record. We understand that your time is limited and, with the consent of the Committee, we have submitted three formal statements. I apologize for the length but we find ourselves in the same position as Blaise Pascal when he apologized for the length of a letter because he lacked the time to write it shorter.2 Continue reading “Testimony in Senate Intelligence Committee on Abuses By Naval Intelligence and the Daniel King Case” →

Congress, Constitutional Law, Media, Politics, Testimony

Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee

Statement for the Record
Jonathan Turley
J.B. and Maurice C. Shapiro Professor of Public Interest Law
George Washington University Law School

May 26, 2006

Before the Permanent Select Committee on Intelligence
United States House of Representatives

I.
INTRODUCTION

Chairman Hoekstra, Representative Harman, members of the Select Committee, thank you for inviting me to testify on the role and responsibility of journalists in covering classified subjects.
The subject of today’s hearing carries particular significance for me as someone who regularly works in both the law and the media. On the legal side, I hold the Shapiro Chair for Public Interest Law at George Washington University where I teach relevant subjects that range from constitutional law to defamation to criminal procedure. In addition to writing on national security subjects as an academic, I have served as counsel in a variety of national security and espionage cases, including as lead counsel in the current terrorism case United States v. Al-Timimi. My litigation background includes cases that have dealt with attorney and journalistic privileges as well as executive privilege and the military and state secrets privilege. Due to my work in cases handling classified material, I have held a clearance since the 1980s.
On the media side, I have worked as a legal commentator for roughly two decades. I am a member of the USA Today Board of Contributors and write regularly for various newspapers, including The Washington Post, Los Angeles Times, Chicago Tribune, and other publications. I have also had four stints under contract with NBC and CBS news and continue to appear as a legal analyst regularly on various broadcast and cable programs.
Many lawyers and journalists have become increasingly alarmed by the erosion of protections for the media in this country. While we often refer to our country as the cradle of press freedom, it is not true that the United States currently represents the high water mark for journalistic rights and privileges. Despite our great tradition of a free press and our extensive media industry, other nations now extend greater protections to their reporters and recent coercive measures against reporters have made the United States an area of considerable concern for international organizations.
The recent controversy over press freedom comes at a time when we have never been more dependent on the Fourth Estate to challenge and check the government’s otherwise unbridled authority. In the last few years, we have faced one of the most serious constitutional crises in our history. President Bush has claimed the authority to violate or to circumvent federal law when he deems it to be in the nation’s interest. There continues to be a raging debate over the President’s authority to order warrantless domestic surveillance and other controversial (and potentially criminal) operations. These are controversies that the Administration obviously would have preferred to avoid. Much anger has been directed at the media and there have been calls for new penalties and prosecutions for reporters and their sources. Continue reading “Press Freedom and the War on Terrorism: Testimony in the House Intelligence Committee” →

Congress, Constitutional Law, Politics, Testimony

Testimony: D.C. Vote in Congress (Senate Judiciary Committee)

STATEMENT FOR THE RECORD
JONATHAN TURLEY
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

ENDING TAXATION WITHOUT REPRESENTATION:
THE CONSTITUTIONALITY OF S. 1257

MAY 23, 2007

COMMITTEE ON THE JUDICIARY
THE UNITED STATES SENATE

I.
INTRODUCTION

Chairman Feingold, Senator Specter, members of the Committee, it is an honor to appear before you today to discuss the important question of the representational status of the District of Columbia in Congress. At the outset, I believe that it is important for people of good faith to acknowledge that this is not a debate between people who want District residents to have the vote and those who do not. I expect that everyone here today would agree that the current non-voting status of the District is fundamentally at odds with the principles and traditions of our constitutional system. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

Today, we are all seeking a way to address the glaring denial of basic rights to the citizens of our Capitol City. Clearly, this is a matter that is heavily laden with passions from decades of disenfranchisement. However, there is a tendency to personalize the barriers to such representation and to ignore any countervailing evidence in the constitutional debates. In the last Senate hearing, my friend Delegate Eleanor Holmes Norton told Senators that if they are going to vote against this bill, “do not to blame the Framers blame Jonathan Turley.” Del. Norton went further to argue that it was “slander” to claim that the Framers intended to leave District residents without their own representatives in Congress. In reality, I have long argued for full representation for the District and abhor the status of its residents. As for claims of slandering the Framers, truth remains an absolute defense to defamation and the record in this case could not be more clear as to the intentions of the Framers. While some may view it as obnoxious (and indeed some at the time held the same view), the Framers most certainly did understand the implications of creating a federal enclave represented by Congress as a whole.

Unlike many issues before Congress, there has always been a disagreement about the means rather than the ends of full representation for the District residents. Regrettably, I believe that S. 1257 is the wrong means. Despite the best of motivations, the bill is fundamentally flawed on a constitutional level and would only serve to needlessly delay true reform for District residents. Indeed, considerable expense would likely come from an inevitable and likely successful legal challenge — all for a bill that would ultimately achieve only partial representational status. The effort to fashion this as a civil rights measure ignores the fact that it confers only partial representation without any guarantee that it will continue in the future. It is the equivalent of allowing Rosa Parks to move halfway to the front of the bus in the name of progress. District residents deserve full representation and, while this bill would not offer such reform, there are alternatives, including a three-phased proposal that I have advocated in the past. Continue reading “Testimony: D.C. Vote in Congress (Senate Judiciary Committee)” →

Constitutional Law, Justice, Lawyering, Politics

Charles Bakaly III and Telling What Isn’t Secret

The New York Times

July 17, 2000

The contempt trial of Charles Bakaly III is something of a curiosity in Washington. In a town where leaks flow like a powerful torrent down every avenue, the prosecution of a spokesman based on an innocuous disclosure seems almost comically misplaced. Nevertheless, Mr. Bakaly, who was the spokesman for the independent counsel Kenneth Starr, is facing a criminal conviction for denying that he was the source for a New York Times reporter in January 1999.

For defense attorneys, the prosecution of a government lawyer would have been welcome if it were for leaking information that could not legally be made public. Government lawyers routinely leak facts from grand jury proceedings and commit other ethical violations with no response from most federal judges.

But Mr. Bakaly is not in the dock on such a charge; he is accused of criminal contempt under a rule that punishes false statements that delay or obstruct a court. The statements and the delay, however, came after a legal error of the court itself, which misinterpreted a federal law. The decision to initiate an inquiry into confidential communications raised serious concerns for lawyers who handle high-profile cases. The decision to pursue a criminal case against Mr. Bakaly only magnifies those concerns. Continue reading “Charles Bakaly III and Telling What Isn’t Secret” →

Columns, Congress, Constitutional Law, Justice, Supreme Court

Reforming the Judicial Confirmation System

May 19, 2004 Wednesday

HEADLINE: Confirmation Process Needs a New Rule: Play Nice at Recess

BODY:
Recently, leading Democrats have accused President Bush of not playing nice. After Senate Democrats blocked confirmation of a number of judicial nominees, Bush sidestepped the Senate and gave them temporary “recess appointments.” Then, Democrats embargoed all judicial confirmations until the president agrees not to use his recess appointment authority. Yesterday the two sides reached an interim deal to break the deadlock (see story, p. 3). But more is needed.

The fight has its roots in a mistake that dates back to the drafting of the Constitution more than two centuries ago. Indeed, this mistake is one of the few oversights by framers, who were ordinarily smart about details. While the framers gave the Senate the sole authority to confirm judicial nominations, they also gave the president the authority to temporarily appoint officials without Senate confirmation when Congress was not in session. Continue reading “Reforming the Judicial Confirmation System” →

Columns, Congress, Constitutional Law, Politics

Ronald Reagan and the Dangers of a Cult of Personality

June 10, 2004 Thursday

HEADLINE: Replacing Giants On Currency Is A Bill Too Far

BODY:
As the nation mourns the death of Ronald Reagan, there are some who are intent on marking his passing with more than heartfelt tributes and tears. A massive memorial on the Mall and other projects are currently being proposed to immortalize this conservative icon. However, two proposals appear to be moving quickly through the halls of Congress: One would replace Alexander Hamilton on the $10 bill, while the other would replace Franklin Delano Roosevelt on the dime.

The move to bump Hamilton and Roosevelt raises serious historical and symbolic questions – but few of these questions are likely to be discussed, let alone answered, during this period of mourning. While many Americans fiercely opposed Reagan and his policies, most of these critics have remained silent in deference to their fellow citizens who embraced Reagan as a political revolutionary.

The problem is that tossing great leaders such as Hamilton and Roosevelt off our currency risks turning a “celebration of life” into a cult of personality. There is no question that Ronald Reagan deserves memorials and praise. However, since he left office, the appetite for memorials among his disciples has been insatiable. Continue reading “Ronald Reagan and the Dangers of a Cult of Personality” →

Columns, Congress, Constitutional Law, Justice, Politics

The Bush Administration’s Unchecked Authority

June 19, 2006 Monday

HEADLINE: Constitutional Swag, Congressional Privilege

We are in the midst of a crisis with few parallels in our nation’s history, but you would never know it by speaking with most Members of Congress. As Congress blissfully occupies itself with bread-and-circus politics such as flag-burning and same-sex marriage amendments, existing constitutional principles are being eviscerated.

Over the past six years, the Bush administration has made unprecedented intrusions into Congressional authority without any significant response, or even inquiry, by Congress.

The framers anticipated that each branch jealously would covet each other’s power. Accordingly, the Separation of Powers doctrine is based on the Madisonian principle that “ambition must be made to counteract ambition.” Continue reading “The Bush Administration’s Unchecked Authority” →