BILL MOYERS: Welcome to THE JOURNAL. Congress is back in session this week and back to the very important debate over how much power the president should have for domestic spying. Once upon a time, the Foreign Intelligence Surveillance Act, or FISA, required officials to get a court warrant before they could wiretap suspected enemies inside the U.S.A. The idea was to go after the bad guys while protecting everyone else's private lives from peeping government Toms.
What Congress did in a hurry last month was to give the government broad new powers to listen in on private communications here at home, including phone calls and e-mails to and from the country, to tap into foreign intelligence. And to do so, without court orders.
SEN. JOE LIEBERMAN (I-CT): We have a crisis. We are at war. The enemy is plotting to attack us. This proposal will allow us to gather intelligence information on that enemy we otherwise would not gather.
TRENT FRANKS (R-AZ): Al Qaeda will not rest when this body adjourns for the August recess. If we do not address the critical loopholes in our foreign intelligence system tonight, our children may some day face nuclear jihad.
BILL MOYERS: No sooner had Congress left town after expanding the president's wiretapping program than a howl went up from civil libertarians, and bloggers left and right. The ACLU, American Civil Liberties Union, produced an ad likening Speaker Nancy Pelosi and Senate Majority Leader Harry Reid to sheep because they gave into the White House.
Now some members of Congress are having second thoughts. The House Judiciary Committee opened hearings this week with testimony on the new surveillance powers.
REP. HANK JOHNSON (D-GA): Well let me ask you this question: if there was an American soldier in Iraq that sent an email to his girlfriend here in the United States then under this new FISA act that communication can be monitored because it concerns a person who is outside the United States, is that correct?
BOB BARR: That is correct.
JOHNSON: And there is no need for a warrant.
BARR: That is correct.
JOHNSON: No judicial oversight is called for.
JOHNSON: And that can be for a student who may be over in England somewhere and communicates back with a phone call to their parents, that phone call can be monitored.
BARR: That is correct.
JOHNSON: A doctor who is traveling overseas may call a patient who is here in the United States and that phone call can be monitored.
BARR: That is correct.
JOHNSON: that email correspondence can be monitored.
BARR: That is correct.
PROF. ROBERT TURNER, UNIVERSITY OF VIRGINIA: They don't want to listen to grandma talking to grandson. When they find that conversation they will isolate it and they will destroy it. They will erase the recordings and so forth. If you tell Americans rather than overhearing grandma talking to grandson we're going to stop listening to the enemy and we're going to stop finding out where they're planning to kill grandson, most aren't going to understand that and they shouldn't understand that.
REP. DEBBIE WASSERMAN SCHULTZ (D-FL): The issue is that we have a lot of innocent communication that we are capturing unreasonably and unconstitutionally and that the law should be reformed so that we don't do that and people don't have to sit and wonder whether the government is listening to them for no good reason.
BILL MOYERS: Let's talk about this story now with two people who follow it closely.
Mickey Edwards served as a Republican congressman from Oklahoma for 16 years where he was a senior member of the House Republican leadership. A founding trustee of the Heritage Foundation, he teaches now at Princeton's Woodrow Wilson School of Public and International Affairs and is on the board of the Constitution Project, a non-partisan group whose purpose is to defend the Constitution. His book RECLAIMING CONSERVATISM will be out next March.
Anthony Romero has been Executive Director of the American Civil Liberties Union since four days before 9/11. Nice timing. Since then the ACLU has filed landmark litigation on the torture and abuse of detainees in U.S. custody and, more recently, gone to court to challenge the scope of the administration's secret surveillance program. Anthony Romero's new book is titled IN DEFENSE OF OUR AMERICA: THE FIGHT FOR CIVIL LIBERTIES IN THE AGE OF TERROR.
Welcome to THE JOURNAL.
BILL MOYERS: What's the heart of this debate, as you see it?
ANTHONY ROMERO: The debate really guts the Foreign Intelligence Surveillance Act. It allows the government to intercept the foreign communications of American citizens without any judicial review. And that's what our concern is, is when you place that much power in the hands of the executive branch, when you basically gut a system of checks and balances on our private communications, it opens it up to-- rife for abuse. And our biggest worry is that, in fact, the government is amassing great amounts of information on American's communications without judicial review.
BILL MOYERS: But the government already had the power to listen in secretly to two foreigners talking to each other. What's the change in this bill that Congress passed in August? What power does it now have it didn't have before?
MICKEY EDWARDS: : Well there are a couple of things. First let me say that the government has always had the power to do what the president believes needs to be done to protect the country. Has always had that power. But it has to be done in a certain way fitting, you know, fitting the Constitution, which includes a warrant and the laws being made by the Congress.
BILL MOYERS: But we're talking about something very specific. When a terrorist or a suspected terrorist can call from Pakistan-- to Dubuque as easily as I can call you in New York or you in Princeton, I mean, why shouldn't there be more vigilance over that?
ANTHONY ROMERO: Because you're talking about the communications of American citizens. And whenever you implicate the-- the privacy of an American citizen on American soil, you want individualized suspicion and you want judicial review. Otherwise, you completely gut the Fourth Amendment. You gut the Constitutional protections against unreasonable searches and seizures.
MICKEY EDWARDS: So one of the things that's happened is giving the-- much more leeway to the president and protecting-- allowing communications companies to be able to cooperate with the president, with the White House-- in eavesdropping on people and taking away from the American citizens the right to sue, the right to go after these companies for cooperating. So, there have been a lot of new powers that have been given to the executive branch in this revised FISA.
BILL MOYERS: Big government, big corporations, does that keep a conservative like you-- awake at night?
MICKEY EDWARDS: Oh, well, you know, it-- all of the things that George Bush is doing and all of the things that conservatives in Congress have been supporting him on are things that conservatives like me fought against. That's why we became conservatives because we thought it was people like Tony who were gonna do stuff like that. You know, it turns out, you know, it's our people who are doing it.
ANTHONY ROMERO: And I think that's exactly right. I think part of the concern here is about a neutral set of rules that apply to the executive branches of government regardless of who is in power. And I think some of the conservatives and some of the Republicans would be quite concerned, Bill, if you have a Hillary Clinton or a Barack Obama with exactly the same powers when they are president as now George Bush-- ascribes to himself.
BILL MOYERS: But the president and his men do argue that this is war and "I am the commander-in-chief. I have this power implicit or inherent in the Constitution as the commander-in-chief."
ANTHONY ROMERO: But that's the most dangerous part of what's I think the philosophical change coming out of Washington is this idea that you-- you deposit this much greater power in the executive branch. This idea of the unitary executive. This idea of the suped up, hypermuscular executive branch, which is not a co-equal branch of government to the judiciary or to the legislature.
MICKEY EDWARDS: He is not the head of government. He is head of one branch. He is not the head of the branch of government that has the power to declare war. He is not the head of the branch of government that has the power to take care of even decisions about what to do with prisoners of war. That in the constitution belongs to the Congress. You know, the Congress makes the laws. And-- and what we have here is a presidency, you know, that is seeking to change the entire system of government we have in order to accrue more power into the hands of the few individuals and say, you know, it's none of your business. You know, even though the Congress, you know, the lawmaking branch is supposed to represent the voice of the American people, we're not gonna tell you anything. You create a new bill, you tell a federal agency to do this and file a reports with the Congress, we're gonna say we don't have to.
BILL MOYERS: Let me ask you both the president wants to give these big telecom companies complete immunity from criminal prosecution and from civil liability if they help the government spy on Americans. What concerns you about that?
MICKEY EDWARDS: Well, first of all, anytime you start taking away from the American people the right to go to court to find out whether their rights are being violated, you know, then you-- then you have-- you start with a serious problem. I don't know what the court would find in any particular case. But when you say we have taken away-- the same thing with suspending habeas corpus, saying taking away from the people the right to be heard in court and to have their case adjudicated. I mean, that's a heck of a big step away from the Constitution.
ANTHONY ROMERO: And the question on the telecoms in particular is the fact that for the first time you would give the telecommunications the immunity from their consumers bringing challenges to them about their violation of privacy. For the first time you would allow the government direct access to people's private data through through the telecommunications firms.
MICKEY EDWARDS: I think that when you sign up with AOL to have an e-mail account or when you sign up with Verizon for to be your phone company, it never occurs to you that what you're doing is you are giving them the permission to turn over to the Justice Department or whoever else you know David Addington, you know, records--
BILL MOYERS: The vice-president's close advisor
ANTHONY ROMERO: Cheney Mr.Cheney.
MICKEY EDWARDS: You know, the records of who you call and who you e-mail and so forth. I mean-- and that you have no recourse. You have lost your ability to go after them.
BILL MOYERS: But no one wants another 9/11. And the fact of the matter is what's your answer to this, the fact of the matter is somebody must have been doing something right because we haven't been attacked again-- --since then. And-- if you two guys have your way will that make us more vulnerable because we can't track down that suspected terrorist--
BILL MOYERS: --who's calling home from Pakistan?
ANTHONY ROMERO: No. What we want to make sure is that there are rules of the road that are followed, that the government conducts good, lawful intelligence--
BILL MOYERS: And who makes the rules?
ANTHONY ROMERO: I think the rules have to be made by Congress with consultation with Congress and with the judicial branch, the Foreign Intelligence Surveillance Court and the federal courts. But the idea that the executive branch on its own has the power and the capacity to bypass the judicial branch, as it did now with this new FISA bill, or to completely bypass Congress, as the president did in authorizing the National Security Agency's spying program, really rubs counter to some of the basic tenets of our democracy, Bill.
MICKEY EDWARDS: You-- you ever watch these carnivals where we're, you know, you have the shell game and you hide the little pea under the shell and you move it around? Well, that's what the president's doing. The issue is not protecting us against terrorism. We all want to--
ANTHONY ROMERO: We all agree with that.
MICKEY EDWARDS: --protect against terrorism. You know, it's a matter of how it's done, whether you have to do it lawfully, whether you have to get a warrant. The old FISA act said, "Hey, do it." And you-- if there is a big rush and you have to surveill quickly, you don't have time for a warrant, do it and then come back and convince the court and let the court retroactively, you know, give you the warrant. So nobody was trying to stop this from happening. What the president wants to do is cut Congress out of it, cut the courts out of it, get rid of the requirement in the Constitution to get a warrant. You know, the--
BILL MOYERS: You raise a very important question because when they went to Congress and asked Congress for what they wanted, they got it. Congress has been going along. So isn't there a greater fear on the part of either of you that perhaps in the time of terror, both Congress and the presidency, the-- the executive branch are willing to go over the edge in terms of civil liberties?
ANTHONY ROMERO: Sure, Bill. At the very least, though, I mean, I agree with you. The reason why we're so angry with the leadership of the House and Senate, Bill, is that they didn't have to go along with this compromise so quickly. They acted like sheep. That ad is not hyperbole. We need leadership-- not leader-sheep, as we say in the ad.
ANTHONY ROMERO: --one of the most critical things that we need right now.
BILL MOYERS: But where's it gonna come from?
MICKEY EDWARDS: I think there are too few people in Congress in either party who understand that the Congress is the equal branch--
ANTHONY ROMERO: I agree.
MICKEY EDWARDS: --not just separate and independent but equal. And so when the president requires in his view these additional powers, that should be grounds for a very serious set of hearings, debate, serious discussion by the Congress.
BILL MOYERS: Our system seems to be deadlocked.
ANTHONY ROMERO: And it affects ordinary people. There's a young man, Kot Hordynski, he's a remarkable young man. College student. Was organizing protests against the government and the war in Iraq.
And all of a sudden he finds himself on the TALON database, the Department of Defense database, labeled as a credible threat against the nation. And here you have this 20-year-old college student doing nothing more than just handing out flyers and having posters. He turns on his computer and he reads in an MSNBC Web site that he is labeled a credible threat to the nation.
Now, just a couple of weeks ago we find the Department of Defense closes down that TALON database. The worries that I have is that we don't know what other types of databases have been created. And especially the powers that are granted to the government with this new FISA bill allows for the cases like Kot Hordynski to exist that we may not know about for-- until decades to come.
MICKEY EDWARDS: Yes. This is a time for all of us to be worried. Al-Qaeda's not a joke. I mean, they're serious and they want to kill us and, you know, all of that threat is very, very real.
But I've gotta say, just to put this into context, at the time this country was founded we faced a greater threat--
ANTHONY ROMERO: It's true.
MICKEY EDWARDS: --than al-Qaeda because, in fact, the British or the French had the power to wipe us out as a nation, you know, not to kill a thousand people but to wipe us out as a nation. And even in the face of that, those people sat down, they wrote a constitution and said, "We know the dangers. We are not going to give the president, a president, the power to be the sole decider." You know? And we have to keep coming back to, you know, we have to keep America what it is. That's what's exceptional about America.
ANTHONY ROMERO: And even though this might be a different type of war or a different type of context in the al-Qaeda in a way that it's-- not like a challenge that we confronted with the Second World War where you had declared enemies and the public-- the war on terror is never gonna come to a public decisive end the way that the Second World War did.
But the question for us is: Do we want to become a different type of America? Do we want the rights and responsibilities of who we are as Americans to change fundamentally? Especially in a context when the war on terror is never gonna come to a public decisive end. That's what concerns me most, Bill.
BILL MOYERS: Yeah, but see, that's the very point that the president would probably say, that in this war on terror, Congress cannot be equal. Only one commander-in-chief can act decisively and quickly to prevent a series of 9/11s.
MICKEY EDWARDS: I agree we need a strong president. We need one who has a vision. We need one who thinks and acts decisively.
But we don't need a strong presidency. We need a presidency that operates within the constitution and within the separation of powers. You know, the current president doesn't understand that. He thinks that here's a danger and I'm the boss and I'm the-- he has a greatly exaggerated view of what his authority is.
And, therefore, he doesn't understand the steps that's he's required to take, you know? If he were a good president, he would say, "I'm going to marshal the public support. I'm gonna go to the Congress. I'm gonna make my case. We're gonna have serious debates and discussions. And then together, you know, with the Congress taking the lead on the law, you know, we'll act." He doesn't-- he doesn't get that.
BILL MOYERS: Mickey Edwards, I look forward to your book. Tony Romero, I've read your book. And thanks to both of you for being on THE JOURNAL.
MICKEY EDWARDS: Thank you, Bill.
ANTHONY ROMERO: Our pleasure. Thank you.