"The Pres. Has Committed a Crime & We Have to Deal With that"

Testimony given by former NSA Atty Professor Turley to Democratic House Judiciary Committeem, January 20, 2006.

This audio and partial transcript testimony to Congress on Domestic Surveillance Operations
MP3
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Professor Turley

President Bush has for many years asserted authority that is both absolute and in my view, quite dangerous.

In August 1 2002, there was the infamous torture memo, put out by the justice department, that stated in significant part, that the President could indeed order gov’t officials to violate federal law. In fact, that memo said that imposing a limitation on his ability to conduct exercises that constitute torture would be a un-constitutional infringement on his inherent authority.

Attorney General Alberto Gonzalez, in his confirmation hearing insisted that he was rejecting that memo, although at the time we now know he was aware of an NSA operation that based precisely on the same claim of authority.

The President also claimed authority in enemy combatent cases, to unilaterally declare a citizen an enemy combatant, to strip him entirely of his constitutional rights, including the right of access to counsel and the court.

On Dec 30th 2005, the President signed the torture bill that was enacted by this body and by the Senate. When he did so, he used a "signing reservation", a "signing statement" - reserved the right to violate that law, if he considered it to be in the nation’s interest. Now we know that there is an NSA operation based upon the same extreme theory of Presidential power.

The problem with these claims is that they are devoid of any limiting principles. They place this country on a slippery slope that inevitably leads to a maximum leader.

I read the document put out by the Dept of Justice and I’ve changed my testimony to address that document. Frankly what is most remarkable, is not the sweeping claims of authority, but the conspicuous lack of authority to support those claims.

The Supreme Court has rejected the very claims being made by the President with regard to the NSA operation. This operation falls in the lowest possible ebb, in terms of executive authority. It is in direct contradiction of FISA.

Now I want to be absolutely clear, what the President ordered in this case was a crime. Now we can debate whether he had a good or bad motivation, but it was a crime.

The federal law makes it clear- you cannot engage in this type of domestic surveillance operation without comitting a crime, that you can go to jail for five years.

We can debate the wisdom of that, we can debate why the President may have done it, but in my view, the President committed a crime, and we have to deal with that as citizens. And unfortunately, you have to deal with that as members of Congress.

It gives me no pleasure to say that.

But it also strikes an alarming circumstance when the President can go into a press conference and announce that he has violated a federal statute 30 times, and promises to continue to do so until someone stops him. That is the most remarkable admission that I have ever heard from a President of the United States...

(snip)

I was shocked at what I saw , I was convinced the judge would sign anything that we put in front of him, and I wasn’t entirely sure that he actually read what we put in front of him. But I remember going back to my supervisor at NSA and saying that place scared the daylights out of me. And my supervisor said, "you know what, it is scary, but we’re here. The Lawyers of the NSA. I was a law student at that time, and we were right. We won’t let a president exceed his authority."

Well, this president has exceeded his authority.

Under FISA there are three exceptions that allow in one case, to engage in surveillance and proceed later to get approval.

The suggestion that, "time is of the essence" is a ludicrous one.

(snip)

I’ll just remind this instutition of it’s duty. Despite any affiliation to the President, it’s Congress duty to protect it’s authority.

What’s at stake is not a president that has committed a crime- it’s much more serious than that. What’s at stake is a president who is committing a crime under the pretense of legality, he says he has the authority to do that.

Very few members have faced this type of test of faith, but you’re facing it now. And as citizens and as members, it’s now up to us, we’re called to account. For the many benefits that we have gotten from this system, we’re called to account to do something.

(end partial transcript)

Full Testimony submitted for the record
http://www.house.gov/judiciary_democrats/nsabriefing/turleystmt12006.pdf