GWEN IFILL: For weeks, the Bush administration has presented a unified argument in defense of its warrantless surveillance program. Secrets, they argued, should remain secret even from members of Congress. Vice President Dick Cheney made just that case last night to Jim Lehrer.
VICE PRESIDENT DICK CHENEY: If we end up destroying the effectiveness of the program by broadcasting far and wide operational details that would allow our enemies to, in effect, negate it or neutralize its effectiveness, that's not in anybody's interest. That clearly is not in the national interest.
GWEN IFILL: In Senate testimony earlier this week, Attorney General Alberto Gonzales said telling Congress too much could undermine an effective program.
ALBERTO GONZALES: The legislative process may result in restrictions upon the president's -- attempted restrictions upon the president's inherent constitutional authority, and he may not be able to protect the country in the way that he believes he has the authority to do under the Constitution.
GWEN IFILL: But Democrats, and an increasing number of Republicans, have been demanding some degree of judicial or legislative oversight.
SEN. MIKE DeWINE: Statutory authorization and congressional oversight for this program would avoid what may be a very divisive, hurtful debate here in Congress. I truly believe it's in our national interest to resolve this matter as quickly as possible.
GWEN IFILL: Wisconsin Senate Democrat Herb Kohl suggested one alternative at Monday's hearing, but received a noncommittal response.
SEN. HERB KOHL: Mr. Attorney General, if applying to the secret FISA court is too burdensome, then would you agree to after-the-fact review by the FISA court and by Congress of the wiretaps used specifically in this program?
ALBERTO GONZALES: Sir, obviously, we want to ensure that there are no abuses. The president has said we're happy to listen to your ideas about legislation.
GWEN IFILL: Only eight members of Congress-- the majority and minority leaders of both Houses and the chairmen and ranking members of the Intelligence Committees -- were briefed on the previously secret surveillance effort. The vice president said those who were informed supported it.
But in July 2003, one of them, West Virginia Democrat Jay Rockefeller, sent this handwritten note to the vice president. It read in part: "Given the security restrictions associated with this information, I feel unable to fully evaluate, much less endorse, these activities."
The vice president responded last night.
VICE PRESIDENT DICK CHENEY: Wrote a letter three years ago and never raised any concerns after that, sat through numerous briefings, never had any questions that weren't answered.
JIM LEHRER: And nobody else of those eight -- none of those other eight did either?
VICE PRESIDENT DICK CHENEY: Correct.
GWEN IFILL: Rockefeller has argued that the circle of those "in the know" should be expanded.
SEN. JAY ROCKEFELLER: I have heard that hundreds, if not thousands, of people at NSA-- the White House, the Department of Justice and the CIA -- have a working knowledge of the NSA domestic surveillance program. And yet the White House position is that sharing the details about the program is carried out -- if that it is carried out with 40 members of the Senate and the House Intelligence Committees, that that's an unacceptable risk. I'm sorry -- I can't buy into that.
VICE PRESIDENT DICK CHENEY: If we had briefed all of the members of the Intelligence Committee, both Houses, as some have suggested, we would have had to brief 70 members of Congress into this program, because that's how many people have served on those two committees over the intervening four years.
JIM LEHRER: That would have been wrong?
VICE PRESIDENT DICK CHENEY: That's not a good way to keep a secret.
GWEN IFILL: However, this afternoon, New Mexico Republican Heather Wilson, a member of the House Intelligence Committee, said the serious concerns she expressed just yesterday over the surveillance program have now been addressed.
REP. HEATHER WILSON: This morning, the White House agreed just before lunchtime to give the House Permanent Select Committee on Intelligence more extensive information on the program the president has acknowledged exists. This is a very positive development. Serious questioning, sharing of information and review of this program began this afternoon and will go on further into the afternoon.
GWEN IFILL: Wilson would not say just how far the White House would go in providing information to the committee.
GWEN IFILL: Vice President Cheney had an extended opportunity to make his case last night.
Tonight we're joined by two members of Congress who have expressed misgivings about the surveillance effort: Sen. Lindsey Graham, a South Carolina Republican, is a member of the Judiciary Committee; and Rep. Jane Harman, a California Democrat, is one of the eight members of Congress briefed on the program.
We understand, Congresswoman Harman that that briefing actually expanded this afternoon and you may have gotten a few of your questions answered. What can you tell us?
REP. JANE HARMAN: Yes, I did.
Well, after hearing the vice president last night on your show, he must have had second thoughts overnight and today things are somewhat different, and I am encouraged.
We had a three-and-a-half hour briefing this afternoon by Gen. Michael Hayden, who was head of NSA and is now the deputy director of national intelligence, and Attorney General Gonzales on some of the operational aspects of the program, as well as some of the legal underpinnings.
All Democrats on the committee were in attendance and most Republicans were. We had a chance to answer questions. And where we left it was they will be back and we are now holding -- or going to hold hearings in the House Intelligence Committee on FISA.
GWEN IFILL: Is it fair to say that was a confidential briefing? And is there anything that you can tell us about how much farther they were willing to go?
REP. JANE HARMAN: Well, I won't describe details obviously; I never have. But the general outline of the program was described to all members of the committee.
I still believe that under the National Security Act of 1947 the committees have to be fully and completely briefed. And the Senate committee has not yet been briefed.
I also agree with my friend, Lindsey Graham, who did a heroic job on Monday, that the administration's legal case supporting this program is weak and that there's a better way to go there. But I do support the program, and I have said that over the years that I've been briefed on it.
GWEN IFILL: Sen. Graham, as Congresswoman Harman just pointed out, obviously, there's some sort of change of heart going on at the White House. Are you expecting now a similar briefing to come to you from the White House and from the attorney general?
SEN. LINDSEY GRAHAM: You know, really, I told the attorney general Jane being briefed, the Intelligence Committee being briefed I think is a good start.
I don't have a problem with surveiling the enemy; I encourage it. I don't have a problem from domestic phone calls to domestic phone calls if it's about protecting us against efforts of the enemy.
The two legal theories being proposed by the administration as to why the courts are not being involved here I have a problem with. I don't believe the force resolution fairly read would allow the administration based on the force resolution alone to basically go around FISA. None of us intended when we authorized the use of force in Afghanistan to eliminate the FISA program.
Secondly, the inherent authority of the president to conduct the war is real. The expressed authority of the Congress to regulate the military and be involved in war decisions is real. So I don't believe the inherent authority of the president is so strong that there's no role for the Congress or the courts in a time of war when the American citizens are involved.
GWEN IFILL: So when the vice president says, as he did to Jim Lehrer last night, we have all the legal authority we need to pursue this program, you basically don't agree with that?
SEN. LINDSEY GRAHAM: I believe that their legal theories are not good for the country when they're taken to their logical conclusion.
The argument that the Congress is unable to provide legal protections to American citizens in a time of war because the chief -- the commander-in-chief believes that that hurts his ability or her ability to make us safe would basically over time neuter the Congress and do away with the courts.
And during our entire history during a time of war, Congress has been involved in passing legislation, the War Powers Act; courts have reviewed military decisions, military commission trials of enemy combatants. I don't want that to change because checks and balances at a time of war are more important than ever.
You have to remember that in World War II, we put an entire group of people in jail legally just because they looked like the enemy. We need checks and balances.
GWEN IFILL: Congresswoman, since you were a member of this so-called "gang of eight," one of the eight senior intelligence members, leaders who were briefed on this, the vice president suggested yesterday in his conversation with Jim Lehrer that there were no objections raised at the time, and that people who were raising objections now were trying to score a political point; your response?
REP. JANE HARMAN: Well, I said then and I say now that I support the program.
But let me describe in general terms these gang of eight briefings. They are in the White House. I won't list who attends but the eight of us, if we're all there, are the leaders of Congress and the chair and ranking members of the Intelligence Committees. We come in there with no aides, no ability to take notes, no ability to consult anyone. And we can talk to each other but not to FISA experts or anyone else once we leave the room.
The briefings were on the operational details of the program, not on the legal underpinnings, and perhaps in hindsight I should have asked for a briefing on that but again I couldn't have consulted anyone. I couldn't go out of the room and call up a general or former general counsel of the CIA, Jeff Smith, whom I did call after the president disclosed the existence of the program and ask him, "Do you think there is enough legal authority for this program?" and have him walk me through all the Supreme Court cases and the history of FISA.
Let me just say, Gwen, I now understand very clearly what happened in 1978 when FISA was passed. I was working in the Carter White House. And Jimmy Carter signed that bill.
GWEN IFILL: Let me just say - describe -- the Foreign Intelligence Surveillance Act for people who don't know what FISA is.
REP. JANE HARMAN: Good help.
In 1978 Dick Cheney was running for Congress so I'm sure he's aware of the situation then too. FISA was passed to correct the abuses of the Nixon period and fill a vacuum that had been clearly identified by the Supreme Court in a recent Supreme Court case called the Keith case.
And FISA was deliberated on a bipartisan basis in Congress. There were numbers of hearings held. The support for FISA was bipartisan. President Carter, as I said, supported it. Former Attorney General Levi from the Ford administration, where Dick Cheney was chief of staff, strongly supported it. And when it passed, it was declared by the Congress and President Carter to be the exclusive way-- not one way-- but the exclusive way to monitor, eavesdrop on the conversations of Americans in America.
GWEN IFILL: Well --
REP. JANE HARMAN: And the Intelligence Committees in Congress were then created to oversee FISA and did so very carefully for many years until sadly oversight has fallen into disrepair in the Congress.
GWEN IFILL: Let me ask Sen. Graham about that because you have expressed concerns about the abandonment of the process, which you call, I think, outcome-based democracy -
SEN. LINDSEY GRAHAM: Right.
GWEN IFILL: -- and the risks that that poses. What would you suggest? What would you like if they're listening to you now to tell the administration about how the FISA act could be changed?
SEN. LINDSEY GRAHAM: Come to the Congress and we will sit down together and try to create statutory authority that will allow the president to surveil the enemy within our borders where American citizens are involved, we'll give the program wide latitude. If a member of al-Qaida is calling someone in America, I too want to know what they're talking about.
But let me tell you how average Americans could get caught up into a problem with terrorism. Many of these terrorist groups have foundations and business fronts. And you can be doing business with these groups and not know it.
I don't mind following the business trail in finding out what's going on between these groups and an American citizen but I don't want the government to follow an American citizen around in perpetuity for a long period of time without some checks and balances. I don't want the FBI to knock on your door one day and say, "We've been following you for a year. We think you're part of a terrorist group."
When you focus on an individual American citizen, once you have evidence to believe they're collaborating with the enemy, at that point in time I want the courts involved. I don't think that's a burden on the program. I think that's protections against Americans being caught up in something they really don't know they're a part of. Come to the Congress and we will help work this out.
The inherent authority argument has some validity but if it's taken too far to the extent that it's being argued by the vice president, there is really no room left for the courts or Congress, and I'm not for that.
GWEN IFILL: I want to ask you both this final question: First you, Congresswoman Harman. We've heard CIA Chief Porter Goss; we've heard the vice president; and we've heard Alberto Gonzales all suggest that merely this public debate is doing severe damage, is endangering this program. What's your response to that?
REP. JANE HARMAN: Well, I think the leaks have done a lot of damage, and I deplore the leaks of this critical program.
But I think the fact that the administration has until really today refused to deal fairly with Congress and refused to say to Congress that we will disclose more about this program and if there are some issues with FISA we will talk to Congress about FISA has caused a kind of public uproar and distrust that was unfortunate.
Let me just say one more thing about oversight. The administration says it adequately oversees this program. I think there are in place some very effective mechanisms in the executive branch to oversee the program. But it's overseeing itself.
And the system of checks and balances that we have, as Lindsey has said too, requires that Congress as an independent branch of government pass the laws, fund the programs and oversee how all that works. And we have been cut out here. And now we need to be cut in, and the courts need to be cut back in. And the balance that was struck in FISA is a very good balance.
If there's something wrong with FISA, let's fix it. But let's bring this entire program within FISA and then hopefully capture the bad guys who are plotting attacks against us and make sure those attacks never happen and that we all, working together, protect America.
GWEN IFILL: Senator, the congresswoman makes a distinction between the damage done by the leaks and the damage done - or the damage that would not be done if Congress were involved. Would we know about Congress's lack of involvement if it weren't for the leaks?
SEN. LINDSEY GRAHAM: All I can tell you is that the ultimate damage that I want to avoid is a constitutional damage in terms of checks and balances. I want to fight this enemy. I want to make sure our president and our military surveils the enemy. I want to know if American citizens are collaborating with the enemy. We can do that. We must do that.
But the biggest thing that can happen, to me, as a nation is that in the process of fighting the enemy, we give up the processes that makes us free.
I think there is plenty of room for surveiling the enemy and providing protections to American citizens who may be caught up in a network of conversations. So there's a lot of harm that can come. There's two harms: Letting the enemy know what we're doing. We need to make sure we don't do any more of that than we have to. The other harm, equally important to me, is that we destroy a constitutional balance that's worked for 200 years.
GWEN IFILL: Sen. Graham and Rep. Harman, thank you both for joining us.