JIM LEHRER: Democrats who oppose the surveillance program are mounting a response effort. A resolution was introduced in the U.S. Senate today that rejects the president's arguments and one of the co-sponsors is Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee.
JIM LEHRER: Senator, welcome.
SEN. PATRICK LEAHY: Thank you. It's good to be here.
JIM LEHRER: What's the purpose of your resolution?
SEN. PATRICK LEAHY: I want to make it very clear that the illegal spying on Americans is not authorized by the Congress or by any law whatsoever. This is why I question they're trying to keep us safe from terrorists.
We all want to be safe from terrorists. I don't know a Democrat or a Republican who feels otherwise. We want to be safe. But we also want the laws to be followed in this country.
Just like when I was a prosecutor, I wanted to catch armed robbers. I wanted to catch drug dealers. But I knew I had to follow the law to do it.
JIM LEHRER: Now, you say illegal surveillance. In what way is this illegal?
SEN. PATRICK LEAHY: Nobody has been able to point to anything where it's authorized in the law. In fact we have a very specific law that says how the president can conduct surveillance.
JIM LEHRER: The FISA law.
SEN. PATRICK LEAHY: That's the FISA law. You know, we go by the --it's well laid out. In fact, laid out by Justice Jackson. It says that if the - the president's authority --
JIM LEHRER: The late Justice Jackson back in World War II.
SEN. PATRICK LEAHY: Yes. It said that the president's authority is at its lowest ebb once Congress has acted. Congress has acted, laid out very specifically. Nobody has suggested the president couldn't have gone to the FISA court if he really had reason.
And yet, we hear people like Michael Chertoff, the head of the homeland security, suggesting that thousands of Americans had been wiretapped and been spied upon.
Are you telling me that there are thousands of Americans calling Osama bin Laden or al-Qaida members around the world?
JIM LEHRER: The attorney general just said this surveillance was authorized by the resolution passed by the Congress to use military force after 9/11, that the war powers that you and the members of Congress gave the president all includes this sort of thing.
SEN. PATRICK LEAHY: Well, of course, it does not. I was there when that happened. I remember just briefly before we passed the resolution to go after Osama bin Laden in Afghanistan. Them coming up and saying, by the way, could we expand this to give us other powers beyond the law? We said no.
The White House never came back after that to ask for any further powers. We gave them the authority to go after Osama bin Laden. In fact, many of us, both Republicans and Democrats, were terribly disappointed when we found out that instead of catching Osama bin Laden when we had a chance to catch Osama bin Laden, our most elite forces were yanked out of Afghanistan and sent into Iraq.
JIM LEHRER: But here again what the attorney general says, that there's precedent for this, that when presidents in the past have been authorized to use military force, that means use any kind of tactics that are needed when we are at war, and that includes surveillance or anything else, no?
SEN. PATRICK LEAHY: We acted under the War Powers Act. We gave authority to go into Afghanistan to get Osama bin Laden. I wish the president used that authority. I wish he had caught Osama bin Laden. We'd be a much safer country today had he done that. We did not give him the authority for illegal spying on Americans, period.
JIM LEHRER: You do not buy the attorney general's statement that there were operational reasons for not using FISA, they had to act this way?
SEN. PATRICK LEAHY: What conceivable operational reasons could they have? They can act even without a warrant for up to three days.
JIM LEHRER: Under FISA.
SEN. PATRICK LEAHY: Under FISA. The head of the FISA court has told about how accommodating they can be if people need warrants. He's met at 3 o'clock in the morning in his pajamas and bathrobe in his living room to issue these warrants, two thousand or so applications, I think only three or four individual warrants were turned down.
What conceivable operational could be there, other than we screwed up before 9/11 and we'll try not to screw up again now, we'll do anything we can.
JIM LEHRER: Who has been hurt by this surveillance program?
SEN. PATRICK LEAHY: How do we know? We don't know who -- If as was suggested in Mr. Chertoff's statement that thousands of Americans have been spied on, do we really have thousands of al-Qaida operatives in this country and are we so incompetent in our law enforcement that there are thousands of them? We couldn't catch, oh, maybe nine or ten or twelve or thirteen.
JIM LEHRER: You're saying then that Attorney General Gonzales' statement that only people, now these were calls as he said that came from outside the United States to people in the United States but in each case they involved people that had suspected ties to al-Qaida or other terrorist organizations. You just don't buy that.
SEN. PATRICK LEAHY: Nobody knows that. And this is one of the problems. We've had a Congress that, no matter what this administration does because the Republicans control both the House and the Senate - instead of having hearings, they're told by the White House just trust us, just trust us, and we'll do what we want to do.
I give Sen. Specter credit, even though the -- he was told not to have his hearing before the state of the union message -- he is going to have a hearing after the state of the union message on this.
JIM LEHRER: That's on Feb. 6, Senate Judiciary hearing.
SEN. PATRICK LEAHY: And Attorney General Gonzales will have to come and testify. But the law is very, very clear on this. If there are other laws that they need, then come to the Congress and act on it, not this unilateral action. They even said-- and I heard on his interview with you, he said, well, we had all kinds of lawyers or the president said earlier from Kansas we had all kinds of lawyers look at it.
Yeah, he had all kinds of lawyers. I'd like to know what kind of lawyers? Are they the same ones who wrote the memo for him saying that we don't have to follow the laws against torture?
Now, that was what the administration's position was until the public found out about it. When the press reported what's happening here, now suddenly they're scrambling around trying to find a justification for it. Why weren't they honest to begin with and say, look, we need some other tools? But what happens in this case, now we have Karl Rove out and wants to make it a political thing. We're in this together.
Nobody asked if they were Republicans or Democrats killed on 9/11. Americans were struck. And yet we found out that this administration had the evidence before 9/11 where they could have stopped it, didn't use it. And even weeks and months after it, they still hadn't even translated all the material they picked up on the wiretaps before that.
JIM LEHRER: What about Attorney General Gonzales' point, basic point that if any more information gets out about this, it helps our enemies?
SEN. PATRICK LEAHY: You know it is so easy, this is almost what we heard of during the Nixon era when they were spying on those who dissented against them. Even William Safire had his --
JIM LEHRER: He's a columnist for The New York Times -
SEN. PATRICK LEAHY: But he also working for -
JIM LEHRER: -- and worked for Richard Nixon at that time. I'm sorry.
SEN. PATRICK LEAHY: And very supportive of President Nixon.
JIM LEHRER: Right.
SEN. PATRICK LEAHY: He was tapped and other columnists were. We don't even know who is being spied upon. We have rules in this country. It doesn't do to say, well, Osama bin Laden doesn't follow rules. Well, we're not Osama bin Laden. We're the American people. We have nearly 300 million people who exist because we follow the law, and especially when we made the law so easy to go after terrorists -- if it's legitimate.
What I worry about is that this and the data mining -- now we want to go and find out where you and I or anybody else went on the Internet through Google and all. What is this administration trying to do? Are they seeking enormous power to be able to spy on any of us with no reason whatsoever?
JIM LEHRER: Now, your resolution you and Sen. Kennedy announced today. Is that it? I mean, is that all that you and members of the Congress who are opposed can do and will do?
SEN. PATRICK LEAHY: No, I think that we should do this just to make it very clear there is nothing in the law --
JIM LEHRER: You don't have the votes to pass that in a majority Republican Senate, do you?
SEN. PATRICK LEAHY: I don't know. If they don't want to bring it up, it doesn't come up. But the fact is you will not find I don't think you will find anybody, Republican or Democrat, who will seriously look you in the eye and say, oh, yes, we gave the president authority for illegal warrant-less wiretapping on Americans and the authorization to go after Osama bin Laden.
We authorized him to go after Osama bin Laden and we also wrote the Patriot Act at that time. And I was one of the architects of that. It greatly expanded powers, gave all the powers the administration said they needed.
Why, if they felt they needed these powers, why didn't they tell us? Or is it this like the case with the torture memo? They'll do things that they couldn't do under the law unless the press finds out about it.
JIM LEHRER: You just heard the attorney general. Did you in his final statements there read any willingness to work with Congress on this in a bipartisan way?
SEN. PATRICK LEAHY: Well the talking point is, of course, they'll work. We took all kinds of - again -- I compliment Sen. Specter for keeping the pressure up to get him even to come up and testify. Let's see how forthcoming he is. You asked some very good questions. But he gave the same talking points over and over and over again.
JIM LEHRER: The public opinion polls, the new one just out today, shows about half the people think this is a bad thing the president is doing. The other half thinks it's great. So what does that mean? What does that say to you?
SEN. PATRICK LEAHY: I think it's great that the leaders of our country want to protect us against terrorists. We all want to fight terrorists. But I do not think it's great if we set up something where anybody in the government can be involved in the illegal spying on Americans. We have checks and balances -- checks and balances in this country.
And Mr. Gonzales said somehow the Hamdi case gave him this right; it didn't. Sandra Day O'Connor made it very, very clear, even in a time of war the president is not above the law. None of us is above the law.
JIM LEHRER: That was in the Hamdi opinion.
SEN. PATRICK LEAHY: That was in the Hamdi opinion. She made it very, very clear this was not a case about wiretapping and made it very clear that the president is not given some blank check to be above the law because we're after terrorists.
JIM LEHRER: All right. Sen. Leahy, thank you very much.
SEN. PATRICK LEAHY: Good to be with you.