Ok I have finally done it. Here is the remainder of the pseudo debate between civil rights attorney Glenn Greenwald and Professor Robert Turner that aired on CSPAN February 6th.

If you haven’t read the first part of the transcript or if you would like to refresh your memory of the arguments made there it can be found here.

I have highlighted the main points made by both Mr. Greenwald and Professor Turner. Otherwise the transcripts are unedited. I warn you now it is very long. I did cut short Glenn’s last response (only to save space) which was a repeat of points he had already made. If Glenn has any issue with this I ask him to please correct me.

This was imo the best lengthy and substantive discussion of the NSA issue and presidential powers to conduct warrant less survielance. Unfortunately Glenn did not seem prepared to argue on the constitutional merits rather than politics. Which is why I still believe as I did when I first watched the program that Professor Turner had Mr. Greenwald greatly outmatched.

To those of you who really are interested in the constitutionality of this program and not the politics of it, I encourage you to read the entire thing and give your feedback afterwards.

I am asking several constitutional law experts to read this transcript and answer a list of questions I am preparing now that I hope will help me and other laymen like me better understand this.

Here we go:

Prof Turner continues from the previous post:

Now we probably picked up some totally innocent calls. It may be that Osama bought a lamp on ebay and sent somebody an email that said ship it to general delivery Islamabad Pakistan. We don’t know that, but the question is because there are slight risks are we to tell NSA whenever an American is involved in the communications and by American I don’t just mean citizens you have to unplug your headphones and not listen. This is silly. The people that blew up the World trade center lived in this country and were in communication by email and otherwise with terrorists. This is a very important program. It is fully law. Just two more points. Not only did Bush Say that FISA can not interfere with the presidents power in this but when this act was first passed in 1978 Griffin Bell the Attorney General a very distinguished appeals court judge told congress “I see there is nothing in this bill that recognizes the presidents independent constitutional power in this area obviously this statute can not take away that power”. In 1994 where Jamie Gorelick the deputy attorney general went to congress to get an expansion of FISA to include physical searches she said “don’t misunderstand me to believe we don’t think the president has independent power to do this he does”. So you’ve got every court of appeals that ever considered it on the president’s side. You’ve got the appeals court set up by FISA saying that not only have all the courts established this power, but we assume they are right and if they are right then FISA could not take that power away.

Glen G: I want to make a couple of points the first one being that the caller I think referred to and I know Professor Turner did refer to the idea that this is a matter of Democrat vs. Republican. This scandal is about whether or not we live under the rule of law and that is not a conservative or liberal debate. That is an American value. And for that reason there are numerous conservatives and I don’t mean wishy washy conservatives. I mean hard doctrinaire conservatives from Grover Norquist, and Bob Barr, and David Keen from the American Conservative Union and scores of senators who are quite conservative who have expressed not just concern but anger over what the Bush administration has done here ignoring congressional law. Bruce Fine a colleague of Professor Turners in the Reagan administration wrote an op-ed in the Wall Street Journal saying that if the Bush administration does not immediately cease this law breaking that George W. Bush ought to be impeached. This is a scandal that implicates core American political values for what kind of country we are and what kind of country we want to be. The other point I want to make is that nobody is against eavesdropping on Al Qaeda, and Professor Turner despite saying this is about whether we should hang up on Osama Bin Ladin. We have a law in place the purpose of which is to enable the government to eavesdrop on terrorists. We all want eavesdropping on terrorists that why we have a law in place that why Democrats and Republicans came together to make that law stronger in the wake of 9/.11 and that’s why president Bush said that law gives him all the power we need. This scandal is not about whether we should be eavesdropping, we are going to eavesdrop we should be eavesdropping. The question is about whether the president will exercise the awesome power of being able to eavesdrop on the communication of American citizens in violation of the law. Meaning without judicial oversight without anyone knowing what he was doing or in accordance with the law meaning with judicial approval from the secret FISA court. Professor Turner said the only people who were being eavesdropped on are the bad evil Al Qaeda people. He has actually known idea how these powers have been used because the secret FISA court overseas how the eavesdropping is being done. That’s the law that the Bush administration violated and instead eavesdropped in secret so nobody has any idea who has been eavesdropped on. How the eavesdropping power has been used precisely because the administration broke the law. They didn’t break the law by eavesdropping we all want eavesdropping aggressive eavesdropping on Al Qaeda. They broke the law by eavesdropping without the judicial oversight that the law requires.

Caller: asks what happens to this information after it is collected.

Glen G: I think the caller places his finger on exactly what the problem here is. And that is in 1978 we realized that the power to eavesdrop on American citizens is an extraordinary power and it has been abused by Republican and Democratic administrations for decades and as a result we said we trust the federal government to have this power only if someone is watching over them and that someone is the FISA court that is expert in the law and that is trusted to keep the country’s secrets and that is the way that we could assure ourselves that this power would not be abused by ensuring that the president abided by the law. Since the president broke the law and is eavesdropping in secret nobody has any idea on how the power has been used and what has been done with that information including Professor Turner.

Prof Tuner: Well I do have some background on this. Glenn mentioned I worked in the Reagan Administration. From 1981 – 1984 I was council to the President’s Intelligence Oversight Board of the Whitehouse. I was the guy that when the NSA made a mistake and inadvertently intercepted the communication of a US person without a FISA warrant they had to make a report to me. So I followed the law fairly closely. Several things involved here. One FISA is a relatively slow process. That is to say before you can seek a FISA warrant the Attorney General has to be able to certify to the court that there is probable cause. That the US person involved in the conversation is either a foreign power or agent of a foreign power. Now foreign power is defined to included terrorist groups but what do we do when we have a foreign person on the call who we can legally tap everybody knows that and who we know may be Bin Laden himself but if he is talking to an American sending an email to an American we don’t know anything about. We can’t certify to the FISA court that this person is an agent of Al Qaeda. Mousoui was not even an Agent of Al Qaeda he was a lone wolf. Which is again why we could not stop 9/11, because congress had written a law. Now again every court has said the president has this power. Glenn keeps talking about we are breaking the law but there is a hierarchy. The constitution is higher. And if we allow congress to usurp the President’s powers which are what is going on here that will be a tremendous loss to us. We will loose separation of powers. Congress has certain checks that are spelled out in the constitution. But in foreign affairs they are narrow checks. There is all sorts of Supreme Court jurisprudence on this. This has been reported to congress it’s a narrow program. And also when NSA does intercept a conversation with a US person that is in fact innocent lets say Osama Bin Laden is buying a lamp on Ebay. They have minimization procedures by which they have to destroy the record and report it to the Whitehouse and to the congress so this is not unchecked power. This is just like arguing that before a private can pull the trigger in a combat zone he has to bring the target back to the US for some court to decide could this person have mitigating circumstances? Was he really walking across the battlefield carrying an AK47 on his way to a turkey shoot rather than being an enemy combatant? There are mistakes that are made and there will be mistakes that are made when you entrust great power to the executive. But if you don’t give the president the power necessary to fight wars the consequences to the American people will be far greater than the civil liberties violation that are certain to occur through this kind of program .

Glen G: It is very odd for the Bush administration to say that they had the authority to eavesdrop outside of FISA and without warrants given that if they had the authority they could have said so in the past 4 years without disclosing operational details. We don’t need FISA to eavesdrop because we have authority under the constitution that Professor Turner says we have. Not only didn’t they do that President Bush went around the country and misled the American people. Its not that he didn’t tell us what he was doing. He made false statements about what the government was doing. This is what he said on 4/20/2004 in Buffalo NY he said “now by the way anytime you hear the US government talking about wiretapping it requires a court order. Nothing has changed. By the way when were talking about chasing down terrorists were talking about getting a court order before we do so”. He told the American people that when they eavesdrop in order to catch the terrorists they go to the court and get a court order. We know thanks to the New York Times that was false. Senator Specter was asked about this quote by Tim Russert on Meet the Press and Mr. Russert said which is not just a good question but is an obvious question. “Senator Specter isn’t this quite misleading for the president to have said this.” Obviously it is. It’s false. Senator Specter said “well it’s a good question it might be misleading but it might not be misleading. Because maybe he only meant the eavesdropping that we do domestically in which case what he said was accurate if he meant all eavesdropping then yes it was wrong”.

The reason I said that Senator Specter will do what he always does which is make some noises of protest but then fall in line obediently behind the president is because you can’t defend President Bush’s statement without changing what it is that he said. Maybe he meant well we get warrants only when we eavesdrop domestically. That isn’t what he said. What the president said was anytime we eavesdrop and so I think anyone who can’t acknowledge that the president’s statement was a misstatement is a misleading and false statement is someone who is going to defend the president no matter what. And that’s what led my concerns about the objectivity of senator Specter.

Moderator: Mr. Turner what should the Attorney General do today and should members of the Senate Judiciary committee who approve of the presidents actions do today to make their case.

Prof Turner: Well just a ten second aside, I have dealt with Arlen Specter going back to the early 80s. He is a man of high principle a very honorable man. I don’t always agree with him especially on constitutional issues but the idea that he is somehow a flack for the administration is outrageous.

Now what the administration should do I think is make the point that this is a legal operation that is to say as I have said before every court of appeals to consider it says the president had inherent power to do this. The review court created by FISA said that FISA can’t take away that power. So this has been reported to congress over a dozen times the critics are trying to portray this as some sinister operation. Oh well he didn’t tell us about this he deceived. We need to go back and get FDR. Did you realize that during world war 2 we did not announce to the world that D-Day was going to land at Omaha beach? We even set up George Patton to mislead the press into thinking they were going to go somewhere else. I mean how outrageous in a time of war to try and mislead our enemy and make our enemy let down their guard if they think they can communicate in comfort because we can’t listen maybe they are going to say something about the next attack and maybe we can save some American lives. I just think this is silliness.

What I think they are going to do is primarily argue statutory authority and that is to say FISA permits electronic intercepts when authorized by Statute. The Supreme Court in the Hanby case held that held that although there is a federal law that prohibits detaining Americans without statutory authorization the Supreme court held that the AUMF statute that was authorized a few days after 9/11 gave the president power to engage in all of the normal incidents of war. Now as important as sending air craft carriers into battle is collecting intelligence on the enemy. We might have lost World War 2 and certainly it would have gone on for years had we not broken the Japanese and German codes. So this is obviously an incident of war and it’s a statute and so it passes the straight face test to say that statute authorized the president to do this.

I suspect they are not going to make the constitutional argument as strong. Although it is not true to say they have never questioned the constitutionality of FISA on the 19th of January the justice department offered a legal brief that said if FISA were interpreted to block this kind of program it would be unconstitutional and that is certainly true. And again all the courts are on the presidents side. The chairman on the senate intelligence committee if he felt aggrieved he would complain about this. He says he knew about it. I read his letter he also says that “we urged the president not to seek a revision of t his. Because we didn’t think it could be done without tipping off al Qaeda as to the kind of thing we were going to do”. So I think we’ve got a lot of people trying to make this a partisan issue we’ve got a lot of people who generally like George W. Bush who honestly don’t understand this area of the law. It is a very complex area of the law.

Caller: says Glenn and the Democrats want to get us all killed and have a pre 9/11 mentality and that in 1978 when FISA was passed the cold war was over.

Glenn mocks the callers incorrect comment about the cold war being over in 1978 then continues:

Glen G: We are a country that has faced extremely serious threats on multiple occasions throughout our nation’s history. We never decided that we were going to be a country that allowed the president to violate the law or that we were going to relinquish our basic American political values. In the name of fighting those threats a strong country insists about its basic constitutional protection especially when it faces a threat. Professor Turner keeps analogizing where we are to World War 2 and to other wars. Its critically important to realize that the administration and all of its defenders continually tell us that the conflict against global terrorism is one that is going to measured not by years but by decades which means that the kind of powers that professor turner is arguing that we give to president Bush, these broad powers to conduct war powers in the US against American citizens is something that is going to last not for a few years like World War 2 did but for the next several decades. These are powers we will be giving to the president for basically the rest of our lifetimes and Americans need to decide whether or not we want to radically restructure our government basically for the rest of our lives in the name of the threat of Al Qaeda. I think a strong country like America can continue to live under the constitution and will live under a system of government where when congress passes a law saying it’s a crime to do something the president is not allowed to do it. If the laws need changing if they are bad laws if we need to make the law so that the president has more powers we get together as a democracy. We amend the law like we did in the aftermath of 9/11 but we do not want to be a country particularly for the next several decades while this conflict lasts where we throw away all of the constitutions principals that have made our country great.

Caller: Warrants are needed to provide particulars time date probably cause etc.

Professor Turner: The warrant is a fundamental part of our criminal justice process. We are fighting a war. Every president since George Washington was General Washington even before we had a constitution has engaged in warrant less surveillance of enemy communications. George Washington authorized the surreptitious interception of mail coming from Great Britain to America. Woodrow Wilson engaged in electronic intercepts FDR did so. Glenn keeps confusing this and thinking that we are giving power to the president. All the president is doing is exercising powers with much more modern technology that every president during war time has used that every court that has considered the issue has said the president has independent constitutional grounds to use.

Now why don’t you want to get a warrant? Again all of these conversations involve foreign nationals outside this country who we believe belong to Al Qaeda who are communicating often with people we don’t know anything about inside this country. To get a warrant for criminal purposes you would probably assign the FBI to try to find out what they could about the recipient you might get the name somehow and then you would say follow them around see what he does see if you can get evidence he is working for AL Qaeda. You can not certify to the FISA court that this individual is an agent of AL Qaeda because he could just be somebody who sold something on Ebay. There are communications made by terrorists that have nothing to do with terrorism so the question is and there may be hundreds of these that you want to narrow it down.

The Washington post yesterday said that the process has led to intensive investigations of about a dozen Americans a year this is not a great big sweep.

Let me give you a hypothetical. I’m bin laden I want to communicate a bomb plan and send out an email. I spam 500 Americans with mostly elderly people that I learned don’t use their email very often and my subject line says Cheap Mexican Viagra. And then I have two pages of just gibberish about Viagra than at the bottom it says on Tuesday pick up the bomb from Muhammad and bomb the Lincoln tunnel. Ok how many of those Americans are going to delete that the first time they see Viagra on their screen?

But are you going to say we can’t look at that message until the FBI tracks down all 500 of those recipients and make sure they are all enemy agents?

So we don’t violate the privacy rights of the other one. This is silliness. We are in a war. Presidents have always done this. The president ought to be allowed to do this. I don’t hear anybody say we shouldn’t be listening to communications between Americans and Al Qaeda. To get a FISA warrant for each one of those recipients you would first of all have to go to NSA lawyers who would have to look at the facts and decide if there is probable cause. Alright then they would go to the justice department to the office of Intelligence Policy and Review, they would staff it and see what they could do, and then it would go to the Attorney General’s office and another presidential appointee has to sign off. Then you would get in line and go to the court which by this time would probably have 20,000 of these warrants waiting for it to get to.

It would be easy for AL Qaeda to ten thousand people on a spam list knowing nobody would understand especially if you encoded the little bit of information at the end. And we would be spending days, weeks, or months in getting where minutes might make a difference in saving tens of thousands of lives.

Glen G: The line of cases that Professor Turner keeps referencing that says that the president has the right to engage in eavesdropping were all cases that were decided before FISA was enacted and most importantly no court has ever said that the president can eavesdrop on American citizens in a way that congress has made it crime to do so. That’s obvious that that’s the case because we don’t have a country where congress passes a law making it a crime to engage in behavior and the president can engage in it. Yes there are presidents that have engaged in warrant less eavesdropping throughout history all of that was before it was illegal to do so. And the idea that while once somebody gets caught breaking a law they can give excuse to why the law was a bad law is not a principle that we have in our system of government. The president said once congress amended FISA in 2001 after the 2001 attacks. The president came to congress and said I need additional powers. Republicans and Democrats got together amended the law to give President Bush everything he wanted and this is what President Bush said in October of 2001 the law he ended up violating. The new law recognized the realities and dangers posed by the modern terrorists surveillance of communication is an essential method but for along time we have been working under a law that was written in the era of rotary telephones. Under the new law officials may conduct court ordered surveillance of all modern forms of communication used by terrorists. They law we have in place is the law president Bush wanted that he said he needed to eavesdrop on terrorists he should have abided by that law. If he wanted the law changed he could have gone to congress which is controlled by his own party and got the changed he wanted. That’s what a nation that lives under rule of law does. Not secretly break the law and once its broken start finding excuses why he was allowed to break it.

Caller: Mr. Greenwald should try to cover his anti Bush bias better. Mr. Greenwald is not confused he is a mind numb robot of the left.

Moderator: what are you going to look for today

Glen G: repeats the last 2 pages of transcription.

Moderator: Professor Turner should Senator Specter subpoena other people for these hearings? People which have inside knowledge about this?

Prof Turner: I don’t think he needs to subpoena anybody I think he should bring in other people. But he ought to try to find people that no something about national security law. It’s embarrassing. An Awful lot of very good constitutional lawyers have been making pronouncements on this issue that simply don’t understand the background. Foreign Affairs are different from domestic affairs. The issue here is not whether we should obey the law but what law is supreme. The constitution gives the president a great deal of unconstrained power and the Supreme Court has noted that time and again often its check in broad terms the president can’t spend money unless congress appropriates it.

In terms of congress checking decisions on the battlefield and the conduct of war it never happened and if it did happen we would probably loose the war. Glenn says all the court decisions were before FISA. FISA created the FISA court of review that said if the president has this power under the constitution as all the earlier courts said the constitution can not be changed by FISA then FISA can not take this power away from the President and that’s the issue here. It is a very important issue but there has been an awful of confusion and some down right misdirection when people are saying the president claims the power to spy on any American and claims he’s above the law he is doing what every president has done during war time. He has reported it to congress more than a dozen times and if there is a dispute between the statute and the constitution the constitution wins every time.

Now here are my questions for the constitutional law experts out there:

Is there any question that the president had the authority and the military has the authority to intercept our enemy’s communications on the field of battle? In Afghanistan or Iraq for example?

Does the President need congressional approval or judicial oversight in order to do this?

Does Professor Turner cite the cases he mentioned accurately?

Particularly the case of the FISA court of review.

Is it reasonable to consider the USA as a field of battle in the war on terror?

Should there be and are there any restrictions on the president’s authority when these type of operations are being conducted in the USA against some US persons including citizens who may be communicating with foreign nationals outside the country?

Is Professor Turner correct is stating that article 2 gives the president the inherent authority to conduct warrant less surveillance when it involves international communications?

If so, is it then is it also true that constitution can not be changed by FISA or any other statute and that FISA can not take this power or any other power granted by the constitution away from the President?

Can you name any other instance where a statute passed by congress was at odds with the constitution and where the executive ignored that statute and then that statute was later overturned by the Supreme Court?

Are you familiar with the FISA process?

Are the procedures Professor Turner describes accurate?

Would you agree that acquiring 500 or 1000 warrants at a time would be difficult or impossible to achieve in a timely matter if at all under the current FISA system?

Do you think the hypothetical Professor Turner describes where Al Qaeda spams 500 people with an email is plausible?

Are there any other important questions I am forgetting to ask?

Andrew C. McCarthy’s NRO article from yesterday Checked and Unbalanced is a must read. It was in reply to an op-ed by George Will in the Washington Post earlier in the day yesterday, but it seems to me he is using some of the same arguments as Professor Turner. I really hope Mr. McCarthy can comment on this post.

related posts:

Greenwald V. Turner Part 2

Robert Turner Vs. Glenn Greenwald

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