The Inherent Authority to Violate Federal Law

In case you missed Jonathan Turley‘s segment on last night’s Countdown — here’s the transcript.

OLBERMANN: The simplest, broadest question here, could this program possibly be legal?

TURLEY: Frankly, I don‘t see how it can. If what was said in “USA

Today” is true—and there‘s been no denial of any of the essential facts

it seems to me, once again, to violate federal law. It is true that courts do not require a warrant to get the phone number of targeted individuals as part of a criminal investigation. But there is no law that allows the government to do this type of operation.

OLBERMANN: The choice that the government made not to go to FISA or the attorney general, is that in some way an acknowledgement that the NSA took a good guess at this and a good look at it and said, Well, this is probably not going to get approved by a FISA court?

TURLEY: Well, it‘s a very interesting admission, because they went to the attorney general to try to get a signoff on the domestic surveillance program. And they ran into one of the most conservative lawyers in the government, James Comey. And James Comey refused. He said, I don‘t see how this is lawful. Then they went to John Ashcroft in the hospital and even Ashcroft balked and said, I‘m not comfortable with this.

So they could have had two lessons. One is, maybe we should do things lawfully. Instead, they learned, Let‘s not ask people to sign off on these things.

OLBERMANN: Yes. The president says that everything he authorized was lawful. Would he have authorized the NSA to collect these phone records, or could that OK have come from somewhere lower in the chain?

TURLEY: Well, if he did not authorize this program, we are living in dangerous times indeed, because we would have a rogue agency. Only the president of the United States should be the one to approve this type of massive operation.

So I would assume that he did. But when the president says, I would never authorize something that‘s unlawful, you know, it has a lot of people chuckling, because most experts believe the domestic surveillance program, which was disclosed in December, is unlawful, and indeed is a federal crime.

OLBERMANN: When you were here 24 hours ago, you said that the president‘s understanding of his own powers was unprecedented, that he, quote, “believes that he has the inherent authority to violate federal law.” Does the “USA Today” article, does this story basically vindicate that point of view that you expressed?

TURLEY: Quite frankly, I think it does. Every time we have looked under the rug, we have seen this president going to the edge of law and beyond it. And that is consistent with his view that he can violate federal law when he believes it‘s in the nation‘s interest. And that‘s not just national security laws. In his signing statement controversies, he has taken the same position, I, on domestic laws that range from environmental to affirmative action.

This is a president who believes that he can define what the law is or ignore it. He‘s also a president that created his own judicial system just on the other side of the border, and he says that he can try people by his own rules and execute them. Well, that combines the legislative, judicial, and executive powers of this government in one person.

OLBERMANN: Incidentally on this—and it is (INAUDIBLE) incidental –

ordinarily this might be the lead story—are the phone companies up the creek here legally? Are there class-action lawsuits to be filed here? Would you sell your AT&T stock right away?

TURLEY: I hope they are sued. I know they‘re being sued in one case.

I think Qwest has really come out of this, I, with considerable courage. You know, these companies are not supposed to simply hand over millions of bits of information on a wink and a nod. They have to confirm that the government agent or the government official, including the president of the United States, is acting with legal authority. And Qwest did exactly the right thing.

And I expect there are going to be customers with AT&T and Verizon and other companies that are going to be asking, Why did you do this? What was the authority shown to you? Because I got to tell you, I‘ve spent a day now looking for the possible authority that they would use for this operation, and I‘ve come up with nothing.

OLBERMANN: Lastly, again that tangent here that almost got buried in the middle of this, the Department of Justice abandoning the investigation into the original NSA domestic spying program. I asked Dana Milbank about the politics of that. (INAUDIBLE) now, and, let me ask you about the way that this happened. DOJ says it couldn‘t get clearance, security clearance to do this. But doesn‘t almost every high-level investigation mandate some sort of clearance? Didn‘t the CIA leak investigation require clearance? Why did they give up so easily on this investigation and not the others?

TURLEY: Well, I think it‘s clear that this administration is not going to do a serious investigation of itself. And what is really troubling is that the intelligence community controls clearances. I have a clearance. I‘m involved in an NSA-related case. They control those clearances. So they control the ability of people to investigate their own alleged crimes. Now, there‘s an obvious problem with that.

OLBERMANN: Jonathan Turley, constitutional law expert, great thanks once again.

TURLEY: Thanks, Keith.

OLBERMANN: Just remember the story of the commentator during the wiretap paranoia of the ‘70s who said, whenever he picked up the phone, instead of saying, Hello, he‘d just bark out, “[Blank] J. Edgar Hoover.”

I may start greeting people with “[Blank] John Negroponte.”

17 thoughts on “The Inherent Authority to Violate Federal Law

  1. Sorry for the long comment, Maha, I realized after I finished that I apparently had a lot to say… I saw a rightie the other day explain the prez’s law-breaking powers… The prez actually has NO law-breaking powers, no laws have been broken. Since the 1920s or so, it has been understood by the judicial branch that if a law is unconstitutional, it is ALWAYS unconstitutional, from inception on. The supreme court doesn’t “strike down” laws … it merely makes the final judgement as to whether or not something was ever a real law to begin with. If it’s unconstitutional, then it was never a real law. The prez’s job is to execute the laws of the land, with the constitution as the ultimate law. THEREFORE, if a prez believes a law is unconstitutional, he not only can but SHOULD refuse to actually execute it. By refusing to execute it, he is specifically NOT breaking it, since it’s not a real law at all. There is NO legal reason why a law should be considered constitutional until proven otherwise, it’s all up to the judgement of the prez.

    Pretty much every president since then has had to exercise this judgement at least once, some several times.

    HOWEVER — the corellary to an unconstitutional law being always unconstitutional, is that a constitutional law IS ALWAYS constitutional, from inception on, and the president MUST execute that law. No choice. No such things as a power to break a constitutional law. And … again, the ultimate arbiter as to whether or not some given law is constitutional is the Supreme Court… Most specifically NOT the prez.

    This is why it has always been understood that the prez SHOULD only refuse to execute a law IF he is certain as he can be that the Supreme Court would agree with him, AND that the prez should try to get judicial review of the law as soon as possible, if possible. And, of course, abide by whatever decision the Supremes make.

    THIS prez, on the other hand, has exercised this judgement hundreds upon hundreds of times. Many of the times he’s done so have been specifically contrary to things the Supremes have ALREADY ruled on. And, the prez always takes active steps to avoid ANY judicial review of ANY of these decisions. Those last two sentences alone make it crystal clear that the prez has completely and utterly failed in his duty to faithfully execute the laws of the USofA. By refusing to execute laws that he knows or believes the Supremes would rule constitutional, he is BREAKING the law. Not performing his duty. If that’s not impeachable, then nothing is, because I can’t think of much worse a prez could do.

    But even if you ignore those two sentences, just focus on the hundreds and hundreds part … give the president every benefit of every doubt possible, lets say he’s really and truly right that all of those hundreds and hundreds of laws are unconstitutional as written. Wouldn’t that ITSELF be an EXTREMELY powerful indigtment of the Republican party, as it has controlled both houses of congress the entire time all these hundreds and hundreds of unconstitutional laws have been passed? Wouldn’t that pretty much prove that the Republican party is utterly incapable of ruling?


  2. I am having a hot flash….no, not the female kind, but rather the ‘eureka’ kind.

    I think the datamining through the telcoms probably preceded the warrantless bypass-FISA wire-tap program, perhaps by several months.

    If my eureka is true, then what Olbermann called the ‘original NSA spying program’ was not an ‘original’ but rather an outgrowth of the datamining. This would make a lot of sense in explaining why Bush and the NSA wanted to bypass FISA…..they would already knw that they were in violation of the Telecommunications laws and particularly were in massive violation of the 4th amendment by invading millions of Americans’ privacy. How could they risk being caught out if slips of the tongue revealed their ‘sources for probable cause’ before FISA judges? And lying before FISA about original sources could mean professional suicide, disbarment and/or jail for any attorneys who’d have to go to FISA for warrants.

    Maybe all the hoopla about Bush being the ‘decider’ and pursuing an ‘above the law’ persona….is cover-up spin to keep us from simply recognizing how he and his cronies have been the most blatant law-breakers in our history.

  3. “[blank] John Negroponte!” doesn’t quite have the zip to it of George Carlin’s “[blank] Hoover!” phone greeting from the late 1960s– just too many syllables. I may start answering the phone with with “[blank] Cheney!”

  4. I got to wondering today just how much the data mining might be serving or could be used by the fanatic wing of the christian right. (after reading over at hullabalo about christian dominion)

  5. Is it possible that the bushies themselves leaked this story to USA- Today? I recall some right wing hack on Faux news saying that the Bushies were looking forward to a debate on the NSA (during Hayden’s conformation). His point was that it would be good to get the media focus back on National security, while putting all this immigration, corruption, plamegate, etc. out of the news. I personally do not believe USA would print the story without checking with Cheney first. MSNBC quoted a poll today stating that 63% of Americans believe this latest 4th amendment infraction is O.K. if it prevents another terror attack. Is this just another way to raise the terror alert level, like during the last election? Just a thought.

  6. Uncledad, I wouldn’t think that the Bushies leaked the story to control the focus. I see your point in being aware that deception and manipulation are the most powerful tools in the Bushies tools box, but some of the facts released in the story are so damaging to prior assertions of safeguarding civil liberties that I can’t believe the Bushies would self inflict that damage to control the focus. It doesn’t balance out because all the other issues aren’t going away, they’ll just resurface during a lull.
    One interesting and troubling point of the story that was raised by whomever, is that Qwest didn’t comply with the governments request to provide data, and that they(Qwest) told the government to come back with court authorization. The government didn’t pursue the request past the refusal (They didn’t come back)..That little exchange speaks volumes, and if I were the government, I wouldn’t want that information in the public spotlight.. to me, it says it all about the legality and the sincerity in protecting America from terrorists.

  7. Swami,

    Like I said “Just a thought”. However it is possible given the response 63%, and the fact that USA-Today broke the story. Have you ever read that rag? To me that’s the equivalent to Brit Hume himself breaking the story. Maybe Rove is a little off his game given all the distractions lately? Anyway your point about Qwest (is that spelled correctly) is right on the mark. Very insightful, be careful. You may be on to something. And F%#K Cheney.

  8. uncledad, I think both you and Swami are sniffing out the political underpinings of this: yes, it is unlikely the Bushies leaked the story….however, that too-quick-to-be-true poll that came on the heels of the bombshell story of datamining is probably pure political damage control. To read about what Glenn Greenwald writes about the ‘blatantly flawed poll’, check this out:
    [darn…somebody teach me how to do a link!}]

    This morning, I am letting ideas emerge that also look at the political nature of the whole datamining behavior. For a Karl Rove, wouldn’t that kind of master database be a wet dream….the equivalent for him of ‘potential control’ of millions, and, in the interim, the ability to zeroin on everything that key democrats are saying to each other.

    The internet control by the big telcoms would be their payoff, and cut off the very free ability of citizens to speak to each other.

    You would think that back when the datamining began, when Bush was sailing high in the polls, he could have quite easily gotten legislative changes to make such datamining legal…..why didn’t he do that?! Lots of other GWOT programs are secret, but legal.

    This smells like a coup d’etat designed by and for politicos.

  9. well, I’ll be darned…..the link did work….turned red when I posted my message.

  10. Post#3, of course you are right John O.
    The things which will maim of kill Americans in large numbers over the next several days are traffic accidents and disease.
    Where is the war on drivers with cell phones or red light runners?
    I would much rather have a government that promoted education , health care, and reasonable social programs.
    Sadly, the people who believe in big daddy government turned out in droves in 2000 to install the son of a former president who’s poll numbers were in the high 20’s at the end of his term, and as the song goes ” some shakey modern saviors have now been resurrected, in all this confusion, you may have been mislead”.
    My last statement raises a question, can the individual members of the PNAC or AEI be prosecuted or sued in a court of law for the damage they have done? How about the editors of “The Weekly Standard”? Richard Perle and Doug Feith, in particular , have created quite a mess, made a tidy profit, and slithered away into parts unknown until the dust settles and it is safe to start their crap again.Jail the bastards!

  11. “Blank” Negroponte?
    You mean, “blank” the guy who caused tens-of-thousands of deaths in Central America? Where people were found with their hands tied behind their backs, shot in the head, and and buried in mass graves?
    You mean , “blank” that same guy? Now? Now, that tens-of-thousands of people in Iraq are being found dead, with their hands tied behind their backs, shot in the head, and buried in mass graves?
    Is that the guy?
    Anyone notice a pattern?
    Wait, no… I don’t, Mr. Negroponte… Really, I don’t… No,… Not at all! REALLY!!! JESUS, IT HURT’S WHEN YOU JERK MY SHOULDER’S….”

  12. Post #14

    If you or anyone else for that matter is interested check out my website and a song called one by one. I wrote this in 1993 after the first gulf war. Unfortunatly it still rings true today.

  13. I wonder if Nergoponte is as hot in fishnets and garter as J Edgar Hoover was? Nah, I don’t think so because J Edgar was more Rubinesque.

  14. Pingback: Beware The Man » I Watched This in Horror

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