As the Senate Judiciary Committee wraps up questioning of Attorney General Alberto Gonzalez regarding the secret National Security Agency surveillance program, there is speculation in political and academic circles that Yale Law School Dean Harold Koh may soon be called to testify as an outspoken opponent of judicially unauthorized domestic spying.
Although Koh — who served as assistant secretary of state for democracy, human rights and labor under President Bill Clinton LAW ’73 and, according to some reports, was on the short list to become attorney general — said he does not know if he will be summoned, he said Gonzalez’s testimony in defense of the NSA program Monday was largely unconvincing.
“I don’t know if I will be called to testify, but I do think that the illegality of this program is so manifest that it is important that everyone take a hard look at the attorney general’s arguments,” Koh said. “I’ve heard nothing in [Gonzalez’s] testimony that has changed my view that this program is illegal.”
Koh has emerged over the past week as one of the leaders of the effort to shift Congressional sentiment against the program, co-authoring a letter in the New York Review of Books last week that argues the program is not founded on “any plausible legal authority” and appears to “violate existing law.” The letter, which was signed by 14 constitutional law scholars and former government officials, also asserts that the Department of Justice has made a series of legal blunders by subverting Congress and the Foreign Intelligence Surveillance Court, misinterpreting Supreme Court precedent, and misconstruing the President’s constitutional authority.
The letter was also sent to 10 members of Congress, including Senate Judiciary Committee Chairman Arlen Specter LAW ’56, and the Chief Justice of the FISA court, established by Congress to regulate government surveillance. The letter argues that this court must be consulted in all spying cases of the nature exposed last month by reports in The New York Times.
In a show of support for Koh’s comments, Minority Leader of the Judiciary Committee Sen. Patrick Leahy entered the letter into yesterday’s hearing record.
“There are subsequent hearings, and there will be other hearings with additional witnesses,” said Leahy’s press secretary, David Carle. “He and Chairman Specter have not discussed potential witnesses yet.”
A representative for Specter did not indicate whether Koh — who has testified before Congress nearly 20 times — would be called, but refused to rule out the possibility.
In Monday’s New York Times, a front-page story compared the NSA spying scandal to Watergate. Bob Woodward ’65, one of the two reporters who revealed the illegal actions of President Richard Nixon in 1972, said in an interview with the News that the questions facing Congress make it appropriate for the body to call legal scholars like Koh, in addition to government officials.
“I think it’s absolutely proper,” Woodward said. “[NSA spying] will be seen sometimes as political, and maybe it is political, but it is also legal … It’s a serious legal question, with the attorney general and many people talking about it, and it should be not at all inappropriate [for Koh to be called].”
Steven Calabresi ’80 LAW ’83, professor of constitutional law at Northwestern Law School and co-founder of the Federalist Society, said that although he questions the Bush Administration’s approach to the spying program, he believes there still may be compelling justification for its implementation.
“I do think the administration deserves enormous credit for the fact that we’ve gone for four years since 9/11 without any terrorist attacks within the United States,” Calabresi said. “That is remarkable and something I didn’t believe possible on 9/11, and I give the administration credit for that … I do think on some issues related to the War on Terror, the administration has taken positions that are hard to defend.”
Law School students, regardless of their position on spying, said they feel their Dean would be an asset to the Senate Judiciary Committee in determining the legality of President George W. Bush ’68’s approach to combating terrorism.
“I think it’s a good idea because it’s kind of the same thing [Koh] did with Haitian refugees,” Brian Caforio LAW ’08 said. “And one of Yale Law School’s main principles is that we stand for accountability in administrations — they like the right thing to happen. If he had the ability to [testify], and he had information, I think it would only be good for this school in promoting our ideals and also for this country.”
Undergraduates were divided on whether or not domestic spying should be used as a tool to combat terror, but even some Bush supporters said the process should become more transparent.
“I’m okay with the idea that the government might need to have some powers to fight and prosecute in extraordinary ways criminal activity, but I don’t understand why they couldn’t have gone through the FISA courts,” Party of the Right Secretary-Treasurer Andrew Stegmaier ’08 said.
Lauren Henry ’08, president of the Yale chapter of the American Civil Liberties Union, said the NSA spying program is “symptomatic of what’s going on in the government in general in that we are moving away from … transparency.” Henry said she plans to organize ACLU members in the coming days to request information under the Freedom of Information Act in order to demonstrate the lack of transparency in the Bush Administration.
The Department of Justice refused to comment directly on Koh’s letter Monday evening.