NSA Wire Tapping Program Revealed
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SEN. PATRICK LEAHY, D-Vt.: Look at this headline.
KWAME HOLMAN: Only hours after it appeared in print, the story that the National Security Agency secretly has been gathering a giant database of phone records set off a firestorm on Capitol Hill. Vermont Democrat Patrick Leahy was visibly angry about it and lashed out at the Bush administration at a Senate Judiciary Committee meeting scheduled to discuss judicial nominations.
SEN. PATRICK LEAHY: Only through the press, we begin to learn the truth. The secret collection of phone call records tens of millions of Americans. Now, are you telling me that tens of millions of Americans are involved with al-Qaida? If that’s the case, we’ve really failed in any kind of a war on terror.
KWAME HOLMAN: Arizona Republican Jon Kyl responded.
SEN. JON KYL, R-Ariz.: This is nuts. We are in a war, and we’ve got to collect intelligence on enemy, and you can’t tell the enemy in advance how you’re going to do it.
KWAME HOLMAN: Emblazoned across the front page of USA Today, the lengthy report said the code-breaking National Security Agency contracted three of the nation’s largest phone companies to provide records of home and business telephone calls made by their customers.
The NSA earlier was revealed to have been monitoring, without warrants, international phone calls and e-mails thought to be linked to terrorists.
USA Today telecommunications reporter Leslie Cauley spent the last several months preparing today’s story.
LESLIE CAULEY, USA Today: The NSA is collecting the call detail records of millions of ordinary Americans.
KWAME HOLMAN: The companies reportedly contracted by the spy agency are AT&T, Bell South and Verizon.
LESLIE CAULEY: The pitch to the phone companies was: We feel this information can be very helpful in smoking out, you know, and tracking suspected terrorists. And, again, three out of the four agreed.
KWAME HOLMAN: But Qwest, a telecommunications company that provides local phone service to 14 million customers in 14 western and northwestern states, reportedly refused to participate.
All of the telephone companies that worked with the agency refused to comment on specifics, saying only that they are assisting the government in accordance with the law.
Judiciary Committee Chairman Arlen Specter, who had voiced earlier concerns about the NSA surveillance program, this morning said he wanted to bring the phone company officials before his panel.
SEN. ARLEN SPECTER, R-Pa., Judiciary Committee Chairman: We’re going to call on those telephone companies to provide information to try to figure out exactly what is going on.
KWAME HOLMAN: According to the USA Today report, this NSA program does not involve the listening to or recording of calls.
LESLIE CAULEY: This program is referring to in-country calls only, meaning calls that originate and terminate within U.S. borders. There is no eavesdropping as part of this particular program.
KWAME HOLMAN: Alabama Republican Jeff Sessions.
SEN. JEFF SESSIONS, R-Ala.: But it is not a warrantless wiretapping of the American people. And I don’t think this action is nearly as troublesome as being made out here.
KWAME HOLMAN: But on the House side, Majority Leader John Boehner said the report was troubling.
REP. JOHN BOEHNER, R-Ohio, House Majority Leader: I am concerned about what I read, with regard to the NSA database of phone calls. I don’t know enough about the details, except that I’m going to find out, because I am not sure why it would be necessary for us to keep and have that kind of information.
KWAME HOLMAN: The report came out as former NSA Director General Michael Hayden, who President Bush nominated this week to be the CIA’s new director, was scheduled for another round of meetings with congressional members. Hayden spoke after meeting with the Senate’s number-two Republican, Mitch McConnell, this afternoon.
GEN. MICHAEL HAYDEN, CIA Director-Designate: All I would want to say is that everything that NSA does is lawful and very carefully done, and that the appropriate members of the Congress — House and Senate — are briefed on all NSA activities. And I think I’d just leave it at that.
KWAME HOLMAN: California Democrat Dianne Feinstein said that, as a result of today’s revelations, Hayden would have an uphill battle seeking confirmation.
SEN. DIANNE FEINSTEIN, D-Calif.: I happen to believe we’re on our way to a major constitutional confrontation on Fourth Amendment guarantees of unreasonable search and seizure. And I think this is also going to be present a growing impediment to the confirmation of General Hayden, and I think that is very regretted.
KWAME HOLMAN: The Senate Intelligence Committee is expected to open Hayden’s confirmation hearings a week from today.
The President Speaks Out
JIM LEHRER: As the story gained momentum this morning, President Bush made a statement at the White House. And here it is in full.
PRESIDENT GEORGE W. BUSH: After September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack.
As part of this effort, I authorized the National Security Agency to intercept the international communications of people with known links to al-Qaida and related terrorist organizations. In other words, if al-Qaida or their associates are making calls into the United States or out of the United States, we want to know what they're saying.
Today, there are new claims about other ways we are tracking down the al-Qaida to prevent attacks on America. I want to make some important points about what the government is doing and what the government is not doing.
First, our intelligence activities strictly target al-Qaida and their known affiliates. Al-Qaida is our enemy, and we want to know their plans.
Second, the government does not listen to domestic phone calls without court approval.
Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat.
Fourth, the privacy of ordinary Americans is fiercely protected in all our activities. We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al-Qaida and their known affiliates.
So far, we've been very successful in preventing another attack on our soil. As a general matter, every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy.
Our most important job is to protect the American people from another attack, and we will do so within the laws of our country.
Crossing the Line?
JIM LEHRER: More on this now from Sen. Kit Bond, a Republican of Missouri, a member of the Senate Intelligence Committee, and Sen. Patrick Leahy of Vermont, the senior Democrat on the Senate Judiciary Committee.
Senator Leahy, did the president's statement resolve your concerns about this?
SEN. PATRICK LEAHY, D-Vt.: No, and I'll tell you why. I think the president was probably wise and well-advised to give the statement he did, but we have a major credibility issue.
Every time something new comes out in the press, we hear from the White House: Well, well, we've either just told you about that, or we're going to tell you about it.
And then we find nobody was told fully about it, as Jay Rockefeller, the vice chairman of the Senate Intelligence Committee said today.
I wonder what they're doing, so that you can know whether it's legal or not. All of us want to fight terrorists. The 9/11 happened on this administration's watch; they don't want it to happen again, but I don't want it to happen again. No American does.
We want to make sure that we're not just talking about being safe, but we are being safe. If we're going and running lines on every single phone call in this country, I wonder just what that does. They should come and explain.
First, I want to know if they're breaking the law. If they don't want to follow the law, then come to us and ask us to change the law.
I mean, these are the people that have a list now -- a terrorist watch list of 320,000 people. They say that makes it safe -- makes it safer. Well, on that list is Senator Edward Kennedy of Massachusetts -- he was unable to get on a plane -- a nine-month old baby, a nun, and on, and on, and on. Mistakes happen if things are not done right.
JIM LEHRER: Senator Bond, how do you respond to that, that -- you're a member -- first of all, let me ask you directly. You're a member of the Senate Intelligence Committee. Did you know about this?
SEN. KIT BOND, R-Mo.: Yes. I'm a member of the subcommittee of the Intelligence Committee that's been thoroughly briefed on this program and other programs.
And the first point I would make is every time we have a leak of classified information like this, it makes us significantly less safe. Regrettably, since December, when word started coming out about the president's program, and terrorists have learned about what is going on, and it makes us less safe. The more we talk about it, the less safe we are.
Now, to move on to the points, number one, my colleague, Senator Leahy, is a good lawyer, and I believe that he knows, as any lawyer should know, that business records are not protected by the Fourth Amendment.
The case of Smith v. Maryland in 1979, the U.S. Supreme Court said that the government could continue to use phone records, who called from where to where, at what time, for what length, for intelligence and criminal investigations without a warrant.
This has been going on, and this has been gone on long before the president's program started. And the president's program, as he designed, as he explained it, has been designed, and is carefully monitored by the lawyers from the NSA and the Department of Justice to make sure that they target telephone communications from or to overseas al-Qaida or al-Qaida known affiliates.
And this program has given us significant leads and allowed us to identify terrorists and to break up planned plots in the United States. Telephone calls from domestic to domestic-foreign phone calls are not targeted, are not used -- their content is not used -- unless there is a court order.
SEN. PATRICK LEAHY: If I could just...
JIM LEHRER: Excuse me, Senator Leahy, and let me just ask just one follow-up question to Senator Bond so we understand what this is about.
What these are, are records. And nobody then -- now, these are -- but there are tens of millions of records that are in this database, right? And they say somebody, Billy Bob called Sammy Sue or whatever, and that's all it says, and then they go and try to match them with other people?
SEN. KIT BOND: First, let me say that I'm not commenting on in any way any of the allegations made in the news story today. I can tell you about the president's program.
The president's program uses information collected from phone companies. The phone companies keep their records. They have a record. And it shows what telephone number called what other telephone number.
Now, if it's domestic to domestic, they are not targeting -- they're not going after that. What they are looking at are telephone calls coming into our going out of the United States to known al-Qaida phones or their people.
JIM LEHRER: OK.
SEN. KIT BOND: That's what the program focuses on. The government has, in the past, and could look at all of the records of purely domestic phone calls; that's not the purpose of this program.
The Price for Safety
JIM LEHRER: All right. Now, Senator Leahy, as described by Senator Bond, does that strike you as being legal?
SEN. PATRICK LEAHY: No, and I'll tell you why: The Maryland case, in 1979 -- Kit Bond was former attorney general and is a very good lawyer. He's absolutely right. That would have allowed it.
Since then, however, we passed several laws. We passed the so-called CALEA, ECPA, FISA, and the Patriot Act. And we make it very specific in those what you can do and can not do.
As this was described today, I'm hard-pressed -- and most lawyers are hard-pressed -- to say what exception this would fall under one of these laws; it doesn't. And there is a strong question of legality.
When Attorney General Gonzales basically stonewalled the Senate Judiciary Committee, but did admit that there may be domestic wiretapping going on. I would say what the vice chairman of the Senate Intelligence Committee said today. He said: Significant questions remain surrounding the legality of the program and whether the White House has misrepresented the program to the public, through the selective declassification.
He's seen everything that's been shown to...
JIM LEHRER: That's Senator Rockefeller you're talking about?
SEN. PATRICK LEAHY: I'm talking about Senator Rockefeller. But the point is that we haven't done adequate oversight.
Unfortunately, the Congress has acted like a wholly-owned subsidiary of the White House and has rubber-stamped everything that's gone on. And then we usually find out through the press, whoops, they weren't following the law.
Let's go through. Let's find out what parts of the law is being followed, what part's not being followed. The president has more times than all presidents put together in history, through signing statements, that said he will follow only parts of the law that he signs.
Let's get this on the record for the American people. We can make ourselves safe, but it's not enough to say, "Gee, we're doing a great job." That's sort of like telling the head of FEMA, "Brownie, you've done a heck of a job."
JIM LEHRER: Senator Bond, do you...
SEN. KIT BOND: Let me correct a number of things.
JIM LEHRER: OK.
SEN. KIT BOND: First, every time we get something on the record, we are making our country less safe. We have classified information because intelligence is only useful when it is kept out of the knowledge of the terrorists that we're trying to intercept. So every time we talk more about it, then they know more about how to avoid it.
Number two, unfortunately, the vice chairman has been sick and has missed, I think, three in-depth hearings we've had to learn more about the program. He and all of the members of the subcommittee are fully encouraged to ask all of the questions. We have asked those questions.
I've visited NSA. I have seen the steps that they take to make sure the law is followed.
Now, as for the law, the Maryland case, the Smith v. Maryland case, said business records are not protected by the Fourth Amendment. You don't have to get a search warrant.
And the other thing is the FISA court, the court of review in Enray Seal case [ph], said the president has the constitutional authority to conduct foreign intelligence surveillance, what this is, and they said, if the statue limits that ability, it is probably unconstitutional.
JIM LEHRER: Senator Bond, would you have any objection to what Senator Leahy is proposing here, though, that it all be laid out on the table at a -- you're talking about a public hearing, Senator Leahy?
SEN. PATRICK LEAHY: No, I'm asking having the appropriate people of the clearance look at it first, what's going on. Then, we have to make a determination whether it's legal. You know, simply because something is classified doesn't make it legal.
JIM LEHRER: But you're not saying...
SEN. PATRICK LEAHY: Our torture program was classified, didn't make it legal.
JIM LEHRER: But you're not satisfied with what Senator Bond and others have said, that the key members of the Senate Intelligence Committee have been briefed on that. You're suggesting there should be something beyond that, Senator Leahy?
SEN. PATRICK LEAHY: Well, you had a cut on here earlier of Senator Feinstein, who is one of those who's been briefed on it, and she obviously is not satisfied with the legality of this. She is a supporter -- has been a supporter of General Hayden, and she's the one that raised the question, because of this, his own confirmation may be in trouble.
SEN. KIT BOND: Let me answer a couple of things. Number one, General Hayden was not the one who ordered the program. General Hayden is not the one who cleared it. It's the lawyers at the Department of Justice. General Hayden carried out the orders pursuant to the directions of the lawyers.
And I'll be happy to discuss with members of the Intelligence Committee the appropriate laws. And, for a non-lawyer, these areas are very confusing, but they have walked me through this.
Number one, the records, phone records are not personal records. They are not entitled to the Fourth Amendment protections.
The president has the foreign intelligence surveillance powers; that's what they're using. I could cite cases...
JIM LEHRER: Sure.
SEN. KIT BOND: ... and I will do it, in the classified hearings. But the more we talk about it in public, the more our country is in danger. And we are much more likely to have a terrorist attack since the discussion of this program has begun.
Putting the Nation at Risk
JIM LEHRER: That's what I wanted to ask Senator Leahy. I wanted to -- Senator Leahy, what about Senator Bond's point? He's made this two or three times now that just talking about this, the public disclosure in the USA Today, and I guess even the discussion we're having now, is endangering U.S. security?
SEN. PATRICK LEAHY: If anybody thinks that Osama bin Laden, a man who was able to mastermind an attack on us, thinks that we're trying to tap his phone, then they're crazy.
I mean, I was a prosecutor. I got search warrants. I knew how to go after, and I made darn sure that people didn't know exactly what you were doing. We can do that.
But simply saying we're making it safer doesn't mean we're making it...
JIM LEHRER: But he's saying just the opposite. He's saying this is making it un-safer, the public disclosure.
SEN. PATRICK LEAHY: We have so many things that neither Senator Bond or I would talk about here they've done all the time that are perfectly legal, perfectly proper. None of them have been disclosed. They do make us safer.
I just want to make sure that we do not set precedence that removes the privacy of normal, law-abiding Americans. And I think that's why Senator Specter, Republican chairman of the Judiciary Committee, is calling these telephone companies to say: Under what law are you acting?
JIM LEHRER: Senator Bond, do you oppose that? Do you think that's a bad idea, to have phone companies come to the Senate Judiciary Committee?
SEN. KIT BOND: That's a very bad idea, to have a public hearing. And, unfortunately, I've not had the opportunity to discuss the laws with -- and apparently Senator Specter has not been briefed on the program.
What the president said is correct. Number one, that we meticulously -- they meticulously keep the privacy of American citizens protected to the fullest extent of the law.
Number two, Porter Goss, the former director of the Central Intelligence Agency, in response to my question in a public forum in February, said our ability to collect intelligence is very severely damaged, very severely damaged by the leaks. That's what the president said today, and he was correct.
And, by the way, torture has never been tolerated, and the people who engaged in those malicious acts in Abu Ghraib have been punished, and it is incumbent that we punish anybody who violates the law.
SEN. PATRICK LEAHY: And the official policy either was changed once it became...
JIM LEHRER: We're not going -- gentlemen, we're not going there tonight. Thank you both very much.
SEN. PATRICK LEAHY: Thanks, Jim.
SEN. KIT BOND: Thanks.