AMY GOODMAN : Professor Stone, your response?
GEOFFREY STONE : Well, first of all, there is, so far as I can tell from everything that's been revealed, absolutely nothing illegal or criminal about these programs. They may be terrible public policy--I'm not sure I approve of it at all--but the fact is the claim that they're unconstitutional and illegal is wildly premature. Certainly from the standpoint of what's been released so far, whether Mr. Hedges likes it or not, or whether Mr. Snowdon likes it or not, these are not unconstitutional or illegal programs.
AMY GOODMAN : Let me go to a letter that you co-signed, Professor Stone, in 2006 with other prominent attorneys about NSA surveillance under President Bush. You were criticizing it. You wrote, quote, "Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law." How do you compare that to what we're seeing today?
GEOFFREY STONE : They're two completely different programs. The Bush NSA surveillance program was enacted in direct defiance of the Foreign Intelligence Surveillance Act. The Obama program, if we want to call it that, was approved by Congress. That's number one. Number two is, the Bush program involved wiretapping of the contents of phone conversations. The Supreme Court has long held that that is a violation of the Fourth Amendment, if there's not an individualized determination of probable cause. The Obama program, if we want to call it that, does not involve wiretapping; it involves phone numbers. And the Supreme Court has long held that the government is allowed to obtain phone records, bank records, library records, purchase records, once you disclose that information to a third party. And there is no Fourth Amendment violation. So they're two completely different programs.
AMY GOODMAN : But if you just heard our conversation with the mathematician Susan Landau, she argued that often metadata is more revealing than the transcript of an actual conversation. Do you think the law should change, Geoffrey Stone, to include this metadata?
GEOFFREY STONE : Well, I'm not persuaded by her argument that it's more revealing. I do believe that it's problematic, and I think, in fact, there should be statutes that prohibit the gathering of this type of data by private entities, as well as by the government, in the absence of at least a compelling justification. And I thought the Supreme Court's decisions initially on this question were wrong. So I would certainly want to see them differently. But in terms of what the law is, it's not unconstitutional, it's not illegal, and it's completely different from what the Bush administration was doing.
NERMEEN SHAIKH : Chris Hedges, do you agree that--
CHRIS HEDGES : Well, there are plenty of lawyers who disagree with Professor Stone.
GEOFFREY STONE : Not many.
CHRIS HEDGES : Well, the ACLU has just issued a lawsuit over this, claiming that it's a violation of the Fourth Amendment. So, I haven't done a poll. Frankly, the legal profession, under this steady assault of civil liberties, can't hold its head very high. There are a few out there, at the ACLU--
GEOFFREY STONE : Unlike--unlike the journalistic profession?
CHRIS HEDGES : --Michael Ratner and a few others. But, you know--
AMY GOODMAN : Geoffrey Stone, aren't you on the board of the ACLU , or were you?
GEOFFREY STONE : I'm on the National Advisory Council.
AMY GOODMAN : Yes. So what do you think of them suing the government over this?
GEOFFREY STONE : I think it's great. I think that they are perfectly right to bring the question. That's their job. Their job is to challenge whether or not things are constitutional, to raise those questions. That's exactly what they should be doing. Doesn't mean they're always right, but they should be presenting these questions to the courts. That's their job. That's their responsibility.