April 26, 2006

Profs Argue Legality

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Last week New York Times reporters Eric Lichtblau ’87 and Jacob Risen won a Pulitzer Prize for their disclosure of the National Security Agency’s secret domestic spying program.

Yesterday Prof. Jeremy Rabkin ’74, government, and Prof. Steven Clymer ’80, law, engaged in a heated and sometimes personal debate about the legitimacy of that program.

“If you’re at war, you get to do tough things,” Rabkin said, arguing not that domestic spying is stringently legal but that it is a reasonable exercise of presidential power.

Clymer framed the debate as being about protecting fundamental constitutional principles.

“The [Bush] Administration’s position is the president can say [to Congress], ‘Go soak your heads,'” he said.

Rabkin is known for his conservative scholarship, especially in the field of international law; Clymer is a former Assistant U.S. Attorney for the central district of northern California.

Rabkin argued that in drastic times, the president must be able to take drastic measures.

“We had 3,000 Americans killed in one day. That’s very, very serious. Professor Tribe, Professor Hackman, Professor Sullivan, all the rest of you: that’s really serious. A president who doesn’t respond to that in a serious way is not fulfilling his constitutional oath to protect the Constitution and the country,” Rabkin said, calling out several constitutional scholars who signed a letter denouncing the NSA’s spying program. Rabkin dismissed concerns that the NSA program represents a dangerous erosion of civil liberties.

“Why is [Bush] dangerous? Because Daily Kos said so?” Rabkin asked. “Is the next terrorist going to blow up Chicago because we didn’t pick up his message?”

Clymer said that the NSA program, simply, is against the law. He further argued that following the law is essential to maintaining the system of checks and balances that form the backbone of American government.

“This is an issue, now, not of a president exercising his inherent authority, but the president exercising his inherent authority in direct contravention to an act of Congress,” Clymer said, referring to a 1978 act that set up procedures for domestic actions on national security issues.

“Since the enactment of the Foreign Intelligence and Surveillance Act in 1978, no president has done, to our knowledge, what this administration is doing. Namely, conducting wiretaps without judicial authorization,” Clymer said. “What they’re doing is committing a federal felony.”

Clymer attacked claims of special wartime powers.

“It’s a claim that not only can the President do this, but the President can do it, and there’s nothing Congress can do to stop it. … Unless one wants to take the view that Congress has nothing to say about the wiretapping of American citizens on American soil, I think it’s very hard to make that claim,” he said.

“The founding fathers set up a system in this country to have checks and balances where each one of the branches is a check on each other. So if we want to do things as intrusive as warrant-less wiretaps, we have to get a congressionally enacted statute to regulate it, and we have to get a judge to approve it before the executive can do it.”

Clymer said that his experience as a prosecutor had taught him lessons about the power the government has. He said that law enforcement often fingers the wrong suspect. The more power the government accrues, he said, the greater potential for injury to an innocent suspect. “What the administration is doing now is affecting people’s lives … no matter how right you think you might be [that your suspect is really the culprit], you may be wrong,” he said.

Societas, a new group that aims to promote campus discussion of hot-button legal and political issues, sponsored the debate. The debate was attended by an audience of more than 60 students, mostly undergraduates, in Myron Taylor Hall.

Kevin Yeh ’07, the incoming president of Societas, said he was pleased with the turnout of the event and the liveliness of the debate.

“We’re trying to create an interdisciplinary discussion on campus,” he said.

Archived article by David Wittenberg
Sun Staff Writer