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"There Are No Hereditary Kings in America"

Judge Rules NSA Warrantless Spy Program Unconstitutional

A federal judge in Detroit has ruled that the Bush administration's warrantless surveillance program is unconstitutional and must be halted. In her 43-page ruling, U.S. District Judge Anna Diggs Taylor wrote "There are no hereditary kings in America and no powers not created by the Constitution." We speak with constitutional law attorney Glenn Greenwald.

08/18/06 Democracy Now! - Runtime 48 Minutes

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Glenn Greenwald, constitutional law attorney specializing in presidential power and First Amendment issues. He is the author of the new book "How Would a Patriot Act?" and runs the blog Unclaimed Territory.

JUAN GONZALEZ: Attorney General Alberto Gonzales held a news conference after the decision came out to defend the surveillance program.

ALBERTO GONZALES: We have confidence in the lawfulness of this program, and that's why the appeal has been lodged. This is an important program. We have the leaders in the intelligence community who have testified to Congress that it's been effective in protecting America. And so, we're going to do everything that we can do in the courts to allow this program to continue.

AMY GOODMAN: Attorney General Alberto Gonzales. The wiretapping suit was filed in Michigan by the American Civil Liberties Union on behalf of a number of journalists, lawyers and scholars, who believe their communications have been monitored. The Justice Department has appealed the decision, and a hearing is set for September 7. The ruling's on hold while the appeals process is underway. Glenn Greenwald joins us now on the phone, a constitutional law attorney specializing in presidential power and First Amendment issues, author of the new book, How Would a Patriot Act? He runs the blog, “Unclaimed Territory.” We welcome you, Glenn, to Democracy Now!

GLENN GREENWALD: Thanks for having me.

AMY GOODMAN: Can you talk about the significance of this federal judge ruling?

GLENN GREENWALD: Well, there are several aspects to why it's so significant, the first of which is, this is the first time a federal court has ruled on the legality of the Bush administration's highly controversial warrantless eavesdropping program, and the court rather resoundingly said that it violates several constitutional protections and also violates the law. So it's the first judicial decision on what has been a highly controversial political issue.

And then, beyond that, the court was very emphatic in rejecting the Bush administration's arguments, not just with regard to warrantless eavesdropping, but more broadly with regard to its radical theories of executive power that say that the President has almost unchecked authority in the area of national security, and it's now the second court, after the Supreme Court in Hamdan did that, to say that that theory is alien to our constitutional traditions.

JUAN GONZALEZ: Now, the administration has clearly indicated it's going to appeal this ruling to the Federal Court of Appeals, and some critics have said that the judge's ruling in some areas will open itself up to possible reversal. Could you talk about that?

GLENN GREENWALD: Well, the opinion in certain places is not a model of constitutional scholarly reasoning. It is a little bumpy in some places. But with an issue that is of this magnitude, of an initiative that’s this significant and has such implications for so many areas of how our government works, an appeals court is going to look at these issues starting from scratch, anyway. I mean, it doesn't much matter how artful the district court's opinion is, the 6th Circuit Court of Appeal, and quite possibly the Supreme Court after that, is going to look from the beginning to see whether or not this program really is unconstitutional and whether or not it violates the law. So there are parts of the opinion that are actually quite eloquent and quite powerful, in terms of reaffirming the basic principle of our system of government. There are other areas, though, where it’s true there are argumentative holes in the judge's opinion.

AMY GOODMAN: Glenn Greenwald, that was a pretty strong quote of U.S. District Judge Anna Diggs Taylor, who said, "There are no hereditary kings in America and no powers created by the Constitution."

GLENN GREENWALD: Well, it is strong language. And interestingly, though, the Supreme Court of the United States used similar language one month ago in Hamdan, when it said also that the President has no right, including in the area of national security, including in time of war, to act outside of the law, that in our system of government, the President is subject to the rule of law. Only a king can operate outside of the rule of law. And this court has adopted that approach, that rhetoric, because the Bush administration’s theory of executive power really does vest in him the power of a monarch, and it's very encouraging, and surprisingly so, to see courts being so explicit about what this government is arguing in and why it's so wrong.

JUAN GONZALEZ: The judge’s decision, according to some analysts, would also be almost a prevent defense against the current legislation that Senator Specter is trying to put through in the Senate on the government surveillance program. Could you talk about that?

GLENN GREENWALD: Yeah. I think that's actually, you know, one of the most significant parts of the ruling is, you know, there's legislation pending, and since it was agreed to by the White House and Specter, it has a good chance of passing, which would all but eliminate restrictions on the President's ability to eavesdrop on Americans. That’s its purpose, is to legalize what this administration has been doing, because they know that this program violates the law, as it's currently written.

And this court ruling essentially prevents that strategy, because it concluded that warrantless eavesdropping, eavesdropping on Americans in secret and without any restrictions, violates the Constitution, the Fourth Amendment and the First Amendment, and since that practice is unconstitutional, no congress, no congressional statute could authorize it, because Congress can't empower the President to do something unconstitutional. And the ruling likely means that that Specter bill would be dead on arrival, that it would be an unconstitutional bill, and it proposes to authorize the President to do things that the Constitution prohibits.

AMY GOODMAN: Now, there was one argument that the judge did not accept. Can you explain that, Glenn Greenwald?

GLENN GREENWALD: Yes. There was a part of this case brought by the ACLU that seeks to challenge not only the legality of warrantless eavesdropping, but also of the data mining program that USA Today reported a couple of months ago, which suggests that the National Security Agency has a program to collect data that chronicles every domestic telephone call, which Americans make or receive. And the administration argued that for the court to try and examine that program and to rule on the legality of that program would require the disclosure of state secrets. And unlike in the warrantless eavesdropping case, where the government has already confirmed publicly that that program exists, the government has never confirmed this program exists at all, for data mining, and so the court accepted the argument that to try and rule on the legality would be to jeopardize national security, and therefore dismissed that part of the case.

JUAN GONZALEZ: And, Glenn, there was also the whole issue of standing. The government had argued that the folks who brought this lawsuit didn't even have legal standing, because they couldn't prove that they were directly affected by the surveillance program. How did the judge deal with that?

GLENN GREENWALD: Yeah, that's probably the biggest hurdle that this lawsuit faced from the beginning, and probably it’s the one that's most vulnerable on appeal. You know, U.S. citizens can’t just run into court and challenge laws. They have to show that the laws have been directly harming them. And the problem here is that the Bush administration has been eavesdropping in complete secrecy. Congress has never investigated how they've used this power, and so nobody knows who's been eavesdropped on. And so the problem is, how do you ever challenge a law that nobody can ever prove has been used against them?

And what the ACLU did was created a rather creative strategy that the court accepted, which said that these plaintiffs are people who in their profession are required to communicate with people in the Middle East, including those suspected of terrorist ties. The plaintiffs include lawyers who represent suspected terrorists. They have to talk to witnesses over in the Middle East, whom the Bush administration might find suspicious. They are professors who do research that requires the same thing.

And what they allege is that because the world knows that the Bush administration is eavesdropping on anyone they want, in secret, with no judicial oversight, people have stopped talking to them. Their clients aren't open in how they communicate. Witnesses won’t talk to them. Nobody will talk to scholars and researchers, and therefore there's been actual harm to their ability to carry out their professional duties, and that actual harm confers on them the authority to challenge this law.

AMY GOODMAN: We're talking to Glenn Greenwald, who wrote the book, How Would a Patriot Act? He’s a constitutional law attorney who specializes in presidential power. When we come back from break, Glenn, I want to ask you about this AIPAC ruling and what it means for freedom of the press. Stay with us.

[break]

AMY GOODMAN: Our guest is Glenn Greenwald. His book is called How Would a Patriot Act? He also runs a blog called “Unclaimed Territory.” Glenn, I wanted to ask you about another recent court ruling. Last week, a federal judge ruled private citizens can be prosecuted if the government decides they've received or disclosed information harmful to national security. The ruling comes in the case against two former employees of AIPAC, that’s American Israel Public Affairs Committee. They've been charged with passing on classified information to the Israeli government. Can you talk about the significance of the ruling and the implication for journalists?

GLENN GREENWALD: Sure. One of the things that I focus on in my book, actually, is that the Bush administration is in intent upon shutting down all methods of the American people learning about what the government is doing. And the two principal ways we've learned about what they're doing are whistleblowers, who are under vigorous attack, and the media. The reason we know about warrantless eavesdropping or secret prisons in Eastern Europe or the use of torture is because the media has found out about it and reported it. And this administration is intent upon criminalizing investigative journalism, by creating a way to put journalists in prison, for the first time in a long, long time in our country, who report on what the government is doing in secret.

And this AIPAC case is the first time ever that the government has tried to use a law that was passed in 1917 called the Espionage Act to imprison, not government employees who pass on classified information, but private citizens who do nothing more than receive classified information. You had mentioned that the employee -- the individuals had passed on the information to the Israeli government. There is a suggestion they did that, but that is not part of the criminal case. The only thing they are accused of doing is receiving classified information.

And the reason it's so dangerous to make that a crime or to try to make that a crime is because that is something that journalists do every single day, by definition. They receive classified information that they know is classified. And if you can be imprisoned for that act, it essentially means the government can imprison journalists at will. It is an extremely dangerous decision, and the whole case, the purpose of the case, is to enable and empower the Bush administration to put journalists in prison.

JUAN GONZALEZ: Now, this Espionage Act, which as you mentioned was passed right around the time of World War I, led to quite massive crackdowns during that war on both the press and activist groups, didn’t it? And it has a pretty checkered history, in terms of constitutional law scholars.

GLENN GREENWALD: Right. I mean, at the height of World War I, there was definitely sort of a crazed domestic intent to declare people who were opposed to the war as subversives and to put them in prison. And that was why that law was passed. And you're right, it was exercised in ways that we would today find not only horrifying, but clearly unconstitutional, after a century of Supreme Court cases.

But even back in 1917, when the Congress debated this law, there was a proposal to include the media, to include journalists within the provisions of the law, and the Congress rejected that provision on the grounds that it would essentially render journalists useless, because they would be too afraid to report anything meaningful. And despite the Congress doing that, the law was enacted without that provision and now the administration is trying to use it against journalists.

AMY GOODMAN: Glenn Greenwald, in May, Attorney General Alberto Gonzales was questioned about the whole AIPAC case by ABC's George Stephanopoulos.

GEORGE STEPHANOPOULOS: So you believe journalists can be prosecuted for publishing classified information?

ALBERTO GONZALES: Well, again, George, it depends on the circumstances. There are some statutes on the book, which, if you read the language carefully, would seem to indicate that that is a possibility. That's a policy judgment by the Congress in passing that kind of legislation. We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected. Obviously, we want to work with the press in getting the information that we can to pursue criminal wrongdoing, but we want to do so in a way, of course, that's respectful of the role that the press plays in our society.

GEORGE STEPHANOPOULOS: Well, let me try and get specific on it then. Are you open to the possibility that the New York Times should be prosecuted for publishing their initial story on what the President calls his terrorist surveillance program?

ALBERTO GONZALES: George, we are engaged now in an investigation about what would be the appropriate course of action in that particular case. I’m not going to talk about it specifically. But as we do in every case, it's a case-by-case evaluation about what the evidence shows us. Our interpretation of the law, we have an obligation to enforce the law and to prosecute those who engage in criminal activity.

GEORGE STEPHANOPOULOS: Including possibly the journalists themselves?

ALBERTO GONZALES: I’m not going to talk about, again, specific cases, but if the law provides that that conduct is in fact criminal and the evidence is there to support it, we have an obligation, of course, to look at that very seriously.

AMY GOODMAN: Alberto Gonzales, the Attorney General, being questioned by George Stephanopoulos. Glenn Greenwald, your response?

GLENN GREENWALD: You know, one of the reasons why I wrote my book is because I felt like the national media was failing to report what this administration is really doing, just how radical and extremist they are. And the most surprising failure in that regard is the fact that the Bush administration is being quite open about the fact that they're entertaining the possibility of criminally prosecuting journalists for the stories that they write about the Bush administration.

And you would think that if the national media cared about anything, took a stand against this government on any issue, it would be that one, and yet there was Attorney General Gonzales openly speculating about the possibility that Jim Risen and Eric Lichtblau and the editors of the New York Times will be criminally prosecuted for the story they wrote about the warrantless eavesdropping program, and the media virtually did nothing. There was no outcry. There was no defense collectively on their part in order to defend against these measures.

There is nothing more dangerous than even the threat that journalists can be put into prison, because that will be in their minds when they go to report on the Bush administration. Our democracy needs a very aggressive and adversarial press. And this is what the administration is doing, is they’re trying to neuter the press, even more than it's been neutered, with the threat of imprisonment. And it’s hard to think of a greater danger to our democracy than that.

AMY GOODMAN: Glenn Greenwald, I want to thank you very much for speaking with us, constitutional law attorney specializing in presidential power and First Amendment issues. His book is called How Would a Patriot Act?, and he runs the blog, “Unclaimed Territory.” We’ll link to his pieces at salon.com and to his blog at our website, democracynow.org.

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