OLBERMANN: The simplest, broadest question here, could this program possibly be legal?
TURLEY: Frankly, I donâ€˜t see how it can. If what was said in â€œUSA
Todayâ€ is trueâ€”and thereâ€˜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, itâ€˜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 donâ€˜t see how this is lawful. Then they went to John Ashcroft in the hospital and even Ashcroft balked and said, Iâ€˜m not comfortable with this.
So they could have had two lessons. One is, maybe we should do things lawfully. Instead, they learned, Letâ€˜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 thatâ€˜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 presidentâ€˜s understanding of his own powers was unprecedented, that he, quote, â€œbelieves that he has the inherent authority to violate federal law.â€ Does the â€œUSA Todayâ€ 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 itâ€˜s in the nationâ€˜s interest. And thatâ€˜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. Heâ€˜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 thisâ€”and it is (INAUDIBLE) incidental –
ordinarily this might be the lead storyâ€”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 theyâ€˜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, Iâ€˜ve spent a day now looking for the possible authority that they would use for this operation, and Iâ€˜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 couldnâ€˜t get clearance, security clearance to do this. But doesnâ€˜t almost every high-level investigation mandate some sort of clearance? Didnâ€˜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 itâ€˜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. Iâ€˜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, thereâ€˜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 â€˜70s who said, whenever he picked up the phone, instead of saying, Hello, heâ€˜d just bark out, â€œ[Blank] J. Edgar Hoover.â€
I may start greeting people with “[Blank] John Negroponte.”