Provocate.org

Talk by Robert Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, about why the Foreign Intelligence Surveillance Act and other Congressionally devised mechanisms, can’t restrain the president’s authority.

Details to follow

Here’s a recent email from Turner:

From: Prof. Bob Turner [mailto:bobturner@virginia.edu]
Sent: Thursday, September 06, 2007 12:37 PM
To: bobturner@virginia.edu
Subject: Yesterday’s House Judiciary Committee on FISA

Friends –

Yesterday I took part in a fairly lengthy (4 hour) hearing before the full
House Judiciary Committee on reforms to the Foreign Intelligence
Surveillance Act (FISA). The Majority had invited former Republican
congressman Bob Barr, former ACLU official Morton Halperin, and one of my
law school classmates, Suzanne Spaulding, who is a former CIA attorney,
served under Sen. Spector as minority staff director to the Senate Select
Committee on Intelligence, and during the last election was an adviser to
the Kerry campaign. The Minority initially invited me and former Clinton
administration Director of Central Intelligence R. James Woolsey, but when
the Majority said they would be allowed only one witness I wound up going
alone.

Believing the issue to be important (and perhaps a little ticked that the
panel was stacked 3-to-1 and Jim had been “disinvited”) I decided to take
the time to make a strong written case for the record. I started writing on
Monday morning and didn’t stop for 28 hours, by which time I had cranked out
17,000 words — several times more than the prepared statements of the other
witnesses combined.

As far as I can tell, the only press coverage thus far was in ROLL CALL, the
Capitol Hill newspaper.

http://thehill.com/leading-the-news/dems-regroup-to-overhaul-fisa-2007-09-06.html

But from the questions, it was clear that several of the Minority members
had actually read at least parts of my statement (and seemed delighted), and
I hope it will make a positive contribution to the debate in the coming
months. It was almost amusing that several of the Majority members were so
upset by my testimony that they attempted to make me limit my responses to
their questions with either a ‘yes” or “no” answer! (This was presumably
because on many of the earlier questions emphasizing the important of
upholding the Constitution even during wartime (questions presumably
prepared by their staffs before the hearing) I was able to get in more
constitutional history emphasizing my point that it is CONGRESS that has
violated the Constitution in this case.

I pointed out that every president from FDR to Carter engaged in warrantless
foreign intelligence wiretaps, that every federal court to consider the
issue had upheld the president’s power to do that, that Congress itself a
decade before FOIA had as a matter of federal law recognized this power,
that the Carter administration took the position that FISA could not by mere
statute take away the president’s constitutional power, and that in 2002 the
appellate court established by FISA itself had unanimously declared that
“FISA could not encroach on the President’s constitutional power.”

I worked in the Senate when FISA was enacted, but did not attend all of the
hearings since this was primarily an Intelligence Committee bill and I
worked with Foreign Relations. Over the weekend I went back and actually
read some of the hearings, and I discovered that Attorney General Griffin
Bell had explained that, while the bill could not take away the president’s
power to act alone, it would work because President Carter was willing to
agree to follow its terms.
Obviously, just as a statute of Congress can’t amend the Constitution, such
a statute accompanied by the acquiescence of a single president does not
deprive future presidents of their constitutional powers.

Since the press seems to have largely ignored the hearing, it occurred to me
that some of you might find it of interest. The attached copy undoubtedly
contains a number of uncorrected typos and the like, as i still have not had
time to even read through it once and it was written in incredible haste and
without sleep. There are several footnotes that still need page numbers,
etc., which I will correct along with typos in the next few days.

Don’t feel obligated to even open the file, but if you are interested either
in FISA or in constitutional separation of powers in the foreign affairs
area, you may find it of interest. Feel free to share it with others as
well, but if you do please note it is an uncorrected and hastily written
test.

Warmest regards,

- Bob

If this event sounds interesting, check out the former spy’s discussion of the collapse of the CIA September 20. And get Naomi Wolf’s ferociously dissenting view about “Defending America” October 25. See also Lee Hamilton’s talks on September 26 and September 27.

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This entry was posted on Thursday, September 6th, 2007 at 2:53 pm and is filed under Events, Democracy, Foreign policy, Law & justice, Spies & Intel, Terrorism, War & peace, Empire. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.