Koh: Spy programs are illegal

WASHINGTON, D.C. — Yale Law School Dean Harold Koh told the Senate Judiciary Committee on Tuesday that the National Security Agency’s domestic spying program initiated after Sept. 11, 2001, is a “blatantly illegal” program that reduces Congressional oversight to a “pointless rubber stamp.”

In his testimony, Koh accused President George W. Bush ’68 of violating the Fourth Amendment and relying on an unconstitutional theory of executive authority. Although the seven panelists’ views of the NSA program differed — three panelists backed the program, while four spoke in opposition — each emphasized in opening statements that much is at stake, from the ability of the president to prevent further terrorist attacks to the preservation of civil liberties for unborn citizens.

“It’s not just about wiretapping,” Koh said in his opening statements. “It’s about the meaning of the ‘National Security Constitution.’ Is it one of presidential power or is it one of shared power?”

Koh arrived at the Dirksen Senate Office Building a little before 9:30 a.m. with about 20 pages of prepared testimony. In the minutes before Senate Judiciary Committee Chairman Arlen Specter LAW ’56 struck his gavel, Koh introduced his son, William Koh, a high school sophomore, to other members of the panel, which included former CIA Director James Woolsey LAW ’68, a supporter of the program, and lawyer Bruce Fein, a former government official under Republican administrations who was critical of the program.

Few senators attended the NSA hearing, likely because many were busy debating the renewal of the Patriot Act one block away in the U.S. Capitol, Specter said in his opening statement. There was also a low audience turnout, compared to the crowd attending Attorney General Alberto Gonzalez’s testimony on the same matter last month.

In his opening statement, Koh championed checks and balances as essential for achieving the “equilibrium established by our system.” His arguments clashed with those of Woolsey, who spoke earlier on his experiences running the CIA. Woolsey argued that the United States is the “battlefield” in the war on terror and that the president has inherent authority to act, regardless of statutes such as the Foreign Intelligence Surveillance Act of 1978. The act had established the FISA courts that opponents of Bush’s program have argued must be consulted before the government can wiretap American citizens.

Though Koh and Specter exchanged warm greetings after the hearing, Koh devoted the latter portion of his opening statement to criticizing Specter’s proposed bipartisan legislation as “premature” and “irresponsible” if enacted before Congress became privy to the full story behind the spying program.

The bill would have required court oversight of NSA spying but permitted blanket eavesdropping programs, which Koh said would invite violations of the Fourth Amendment requirement that government search and seizure occur only after probable cause is established and an individual warrant is obtained. Fein recommended that Congress exercise its power of the purse to curtail the president’s unilateral actions.

“The burden of persuasion is on the president to establish the program’s legality,” Fein said.

When senators asked for his thoughts of the possibility of legislation regulating domestic spying, Koh said Bush has spent years claiming he has followed the law, yet had chosen secretly to disregard it.

One of the more tense moments of the hearings featured a heated dialogue between Democratic Sen. Russell Feingold, who has led the effort in the Senate this week to curtail unchecked presidential power, and Pepperdine Law professor Doug Kmiec.

Dakota Rudesill LAW ’06, a former Senate staffer who worked with Koh to prepare his testimony, said he thinks Koh’s arguments will be taken seriously.

“He observed that if you follow the administration’s legal argument to its logical end, then there is really no point in senators coming and going to vote on the Patriot Act,” Rudesill said. “There would be no authority that Congress could give the administration that they didn’t previously possess under their theory of inherent presidential power.”

Koh remained for more than half an hour after the hearings finished at around 11:45 a.m., exchanging words with both senators and Yale Law students in Washington, D.C., who had sat in to hear their dean testify.

After the hearings, Koh also said he hoped his son — who had previously attended his father’s confirmation hearings to become Assistant Secretary of State under President Bill Clinton LAW ’73 — will use the experience to grow as an American citizen.

“Whenever I have an interesting opportunity for civic participation, I like to take my kids so that they can catch the spirit,” Koh said. “Next time, he’ll be the one testifying.”

Other witnesses included Woolsey, law professor Ken Gormley, CATO Institute Senior Fellow in Constitutional Studies Robert Levy, and Robert Turner, the associate director of the Center for National Security Law at the University of Virginia.

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