NSA ruling much like a pig in parlor
Copyright © 2006, Chicago Tribune
By Jonathan Turley
Published August 20, 2006

Since its disclosure last year, President Bush's warrantless domestic surveillance program has been denounced as unlawful by the vast majority of legal experts, Republican and Democratic members of Congress and even conservative commentators.

Last week, a federal judge joined this growing chorus with a stinging opinion that found Bush had violated the Constitution and federal statutes in ordering the National Security Agency surveillance program. In striking down the controversial monitoring program, Judge Anna Diggs Taylor chastised the government for a flagrant abuse of the Constitution and, in a direct message to the president, observed that there "are no hereditary kings in America."

While Atty. Gen. Alberto Gonzales insists that the legal authority for the program is clear and filed a notice of appeal with the 6th U.S. Circuit Court of Appeals, few experts outside of the Bush administration support the program. To the contrary, federal law seems perfectly clear in prohibiting warrantless surveillance. Even leading Republicans, like Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), have denounced the surveillance program.

The far more difficult question is the implication of Taylor's ruling. If this court is upheld or other courts follow suit, it will leave us with a most unpleasant issue that Democrats and Republicans alike have sought to avoid. Here it is: If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order.

For people working in government, this opinion may lead to some collar tugging. If Taylor's decision is upheld or other courts reject the program, will the president promise to pardon those he ordered to carry out unlawful surveillance?

The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge. For the last six years, the Republican-controlled Congress has refused to conduct any serious oversight of the administration and has specifically refused to investigate the NSA operation. Certainly, nobody wants to mention the "I" word, particularly not the Democrats who believe that the threat of impeachment could scare away independent voters in the November elections.

Court decisions, however, may make it increasingly difficult for members to ignore a squealing constitutional violation in their midst.

Republicans are now struggling to find a way to protect the president from public accountability. In a widely criticized compromise with Vice President Dick Cheney, Specter wants to retroactively give the president the authority that he claimed and to remove more than 40 cases challenging the NSA program (and other similar programs) to the secret Foreign Intelligence Surveillance Act court. The bill does not actually require the president to submit the program for review. However, he is allowed to do so. Once there, the public and opposing counsel would be barred. Any ruling would be sealed and, if the government wins, no appeal would be allowed.

The secret court is a bit of a misnomer. This is a court that has little authority to actually turn down an application for surveillance, which is why the court has refused only one or two such applications (out of tens of thousands) in its entire existence. To send a major constitutional case to FISA would be like sending Brown vs. Board of Education to a traffic court.

The effort to avoid any further judicial review is likely to increase in the wake of this decision. Though publicly professing absolute confidence in their legal authority, the Bush administration has struggled in dozens of courts to avoid any actual ruling on that authority by seeking to dismiss such cases before review can occur.

When one looks at this train track, it is easy to understand why the administration is not eager to have to present its legal case in court.

It is not alone. This may be the first public commission of federal crimes by a president that is uniformly ignored by members of both parties. It is simply an inconvenient time and a most inconvenient crime. If only we could stop these pesky inconvenient opinions.

Jonathan Turley, a law professor at George Washington University, has testified against the NSA operation in Congress and is lead counsel in a case challenging the operation