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Suzanne Spaulding

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Spaulding worked for Sen. Arlen Specter (R-Pa.) and Rep. Jane Harman (D-Calif.) as a counsel for the Senate and House Intelligence Committees. She also served as assistant general counsel at the CIA (1989-1995), including three years as legal adviser for the Non-Proliferation Center (NPC), and as executive director of both the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction (1999) and the National Terrorism Commission (1999-2000). This is the edited transcript of an interview conducted on Feb. 15, 2007.

… As a CIA lawyer, did you and your colleagues have a sense there were certain things you didn't do that were either unlawful or, in order to maintain public trust, shouldn't be done?

Yes. A lot of the American public doesn't appreciate fully that the CIA takes its obligations to follow U.S. law very seriously, so they're very aware of where the legal limits are in terms of what they can and cannot do. I was at the CIA at a time when the general counsel's office, the lawyers for the folks working in the CIA, was growing, and there was an increasing interest in having lawyers assigned to the various offices and activities within the agency to make sure that they were complying with the law.

But one of the things that made being a lawyer at CIA so interesting was that it never stopped with just looking at the black-letter law. ... When operators in the CIA would come to me, ... I would look at what activity they had planned and hoped to undertake, and I would determine whether it was in compliance with the law. But I would also advise them that even though this is in compliance with the law, I want you to understand that you need to be comfortable with this if it should appear on the front page of the morning newspapers. ...

Because so much stuff leaks, or because they should be thinking about how the public will perceive this, not just how the law does?

Both.

Against the backdrop of your experience on the Hill and in the CIA, what was your reaction when you opened the front page of The New York Times on Dec. 15, 2005, and saw that the president had authorized warrantless wiretapping inside the United States to fight terrorism?

I think it's fair to say I was fairly stunned to think that the administration had developed some theory by which it could go around this statute that had been in place and seemed to be operating well for nearly 30 years and that was very explicit about being the exclusive means by which electronic surveillance of Americans inside the United States was to take place.

... Were you persuaded by the president's rationale? What was your reaction to his presentation of the case?

No, I was not persuaded by the rationale, and particularly I think the argument that this is somehow authorized by Congress' authorization for the use of military force is not at all compelling.

Why not? ...

Well, there's a pre-existing statute, of course, the Foreign Intelligence Surveillance Act [FISA], which was enacted by Congress and signed by the president in 1978, that sets forth a very detailed framework for getting approval for conducting electronic surveillance of Americans inside the United States. And a general statute like the authorization for the use of military force, under common sense and under traditional rules of statutory construction, really can't be read as somehow amending or overruling that earlier statute as passed by Congress and signed by the president.

The attorney general, Mr. [Alberto] Gonzales, argues that if the president can use force to combat the enemy, the president has to be able to use intelligence to direct that force. ... What's wrong with that logic?

... That is a very slippery slope, and it disregards the careful system of checks and balances that our nation was built upon. The administration argues that the executive authority in Article II, for example, grants the president all of the authority that any executive could ever hope to have or would need to have to perform their functions. And yet I think it's safe to say that the framers were very familiar with an executive that had asserted that kind of broad and full authority, and that was King George. And they had rejected that model.

So you're saying that this kind of interpretation of the Constitution and the military-force resolution is in effect re-establishing the powers of kingship?

I think it certainly is on that slope, and the administration has not yet given us any clear indication of where it would draw the line on that slope. ...

So many people in America think this does not affect them.  They've been convinced that these programs are only targeted at suspected terrorists. ... I think that's wrong.

It's understandable that in a time of war, the balance of power shifts slightly in favor of the president. Exactly how much it shifts is a question that scholars can debate, but it certainly does shift in favor of the president from a very practical standpoint. Courts and the Congress tend to be more deferential to the president in a time of war.

In a traditional kind of war, where we know it's going to have an end at some point, we may be able to live with that skewing of the normal checks and balances. One of the reasons it's of such concern when this authority is asserted in the context of this global war on terrorism is that we are also told that this war will last likely through our lifetimes, our children's lifetimes, perhaps our grandchildren's lifetimes. The question we have to ask ourselves is, do we really want that system of checks and balances to be skewed for that long a period of time?

Do you mean have a president have virtually unlimited unchecked power for decades?

If you say, as this administration has, that it is the sole authority of the president to determine when laws are constitutional and when they're not, and when the president determines that they're not, that he's not going to comply with them, that is a kind of unlimited power. ...

I think there are folks in this administration who think that by acting outside of the statutory framework, they are expanding presidential power; they are making the president more powerful. In fact, what the Supreme Court has told us in a case [Youngstown Sheet and Tube v. Sawyer] that came up during the Korean conflict is that when the president acts against the expressed or implied will of Congress, that is when the president's power is at its weakest. ...

... What were the fundamentals that were concerning you?

Well, again, I actually think one of the most important fundamentals is this system of checks and balances. ... But there's also, in the context of electronic surveillance, obviously a real concern about Fourth Amendment protection of privacy, and that's what is reflected in the statutory framework that Congress worked out with the executive branch in 1978, the Foreign Intelligence Surveillance Act. ...

What's wrong with warrantless wiretapping is that you have taken away from a judge -- a neutral, independent arbiter -- the opportunity to look at the basis on which you are undertaking that surveillance to ensure that that Fourth Amendment balancing between the nature of the privacy intrusion and the compelling government need has been met. ...

I think what the framers envisioned was that a warrant was the best way to ensure that that balance had been struck.

The people were being protected.

Yes. And that a warrant should be issued by an independent arbiter, by a judge.

I do think there is a reasonable argument to be made that despite the fact that Congress has constructed this careful statutory framework in the Foreign Intelligence Surveillance Act, that there may be some residual authority for the president in unforeseen emergency circumstances, ... where time is of the essence and where the president feels that he or she must act quickly to protect the nation. I think it is not unreasonable to argue that in that context, the president may have some residual authority to authorize a warrantless electronic surveillance. But again, I think that needs to be then subject to later judicial review to determine whether the president made the right analysis in conducting that Fourth Amendment balancing. ...

We went five years from the attacks of 9/11 before the disclosure of these warrantless wiretaps. Even if you argue that the president might do something in urgent emergency situations right after 9/11, can he still be doing it five years later, or is the president violating the law?

I don't think that he can still be doing it five years later and pass constitutional muster.

So what you're saying is his acts are, at that point, unconstitutional.

I would think so. ... I think a court would decide that the compelling need ... dissipates over time. When there is time now to go to Congress to get the statute amended and five years later, I would be surprised if a court would still uphold that compelling-need side of the equation. ...

Does the fact that they finally brought it under the Foreign Intelligence Surveillance Court [FISC] [suggest] that maybe they could have done that all along?

It's not clear, just as it's not clear whether the president faced those kinds of emergency extraordinary circumstances back right after Sept. 11, when he authorized that warrantless surveillance. We don't know the facts surrounding that, so we can't make that assessment whether he was operating under those circumstances at that time. We don't know the facts today. We don't really know what it means when the administration says that they have gotten orders from the Foreign Intelligence Surveillance Court.

Secrecy, then, is part of the problem.

Secrecy is part of the problem. Secrecy in many of these contexts is imperative. It's absolutely essential that many of these activities not be revealed to the public, and that is why oversight is absolutely essential. And, frankly, that is why we set up this Foreign Intelligence Surveillance Court, so that judges -- again, independent arbiters -- could look at these decisions and make a decision about whether they met Fourth Amendment requirements in secret.

But it does present a real problem, and particularly where the public has, I think, rightly lost confidence in the rigor of oversight, both within the executive branch and Congress. ...

What's left unresolved, at a minimum, is the constitutional debate that was touched off by the revelation of this program and the administration's assertion of unilateral executive authority to operate outside of statutes passed by Congress. ...

Do you buy the administration's argument that it adequately briefed sufficient members of Congress so that there was oversight and that the overseers were satisfied that this was OK?

Absolutely not. I'm very troubled by what appears to be a growing and broadened use of the "Gang of Eight" briefings. This is a term that refers to a practice whereby the leadership of the intelligence committees and the leadership of the House and the Senate are the only members of Congress who are briefed on a certain activity. Now, there can be some situations in which that is justified, and in fact the law, the National Security Act of 1947, specifically provides for that kind of very limited briefing, but only in the context of a covert action, which is clearly defined in the statute. No one is asserting that the terrorist surveillance program is a covert action. It's an intelligence-collection activity. ...

The biggest problem with the limited congressional briefings that the administration appears to have done in the context of this terrorist surveillance program is that there is no opportunity, realistic opportunity, for members to go from those briefings and follow up with the kind of rigorous oversight that we would expect, for a number of reasons. First of all, they're not allowed to tell any of their staff, ... so the member used to operating and dependent upon a staff to do the kind of detailed follow-up investigations that they would normally do in any other context is prevented from using their staff to engage in follow-up. They are very limited in their ability to take notes at these briefings, to keep notes on these briefings. ... It really makes it extremely difficult from a practical standpoint to follow up with any kind of rigorous oversight.

So when you add up all the details of the way these briefings were carried out and the way the administration handled congressional leadership and the appropriate intelligence committees, what does it add up to? Was there, in fact, a significant briefing? Was there a process in which Congress could exercise its oversight role?

I think they made it extremely difficult for Congress to exercise its oversight role. I'm not prepared to say it was impossible. Certainly these members, these eight members who apparently were briefed in some way with regard to this program, could have gotten together and talked about how they each felt about what they had just heard, what might be appropriate follow-up, what steps they might take. They certainly could have pressed the administration to allow broader briefings, although I've seen that happen and it not be successful. But we don't know whether they pressed in this context for this to be briefed to a broader number of members of Congress or … to inform staff of some of this activity. So I'm not suggesting it was impossible for Congress to do its job, but it certainly was extremely difficult and impractical, not very feasible for Congress to do the kind of rigorous oversight that we would expect. ...

The Foreign Intelligence Surveillance Act is a complicated statute, written in some areas intentionally that way to protect the secrecy of the underlying activities, and to expect individual members upon hearing a briefing to be able to conduct the kind of careful legal analysis that lawyers now have spent months and months undertaking since this program came to light? It's not very realistic.

... The administration has made the argument in one way or another that it needed greater speed and agility. The FISA process was too cumbersome, too complex; it was outdated. Was the FISA process so inherently unwieldy that it's impossible to use?

The FISA process had, I think, over the years at various times become cumbersome. It was not because of statutory requirements. It was really because of bureaucratic requirements that the process had become in many cases slow and cumbersome.

So bogged down in the Justice Department.

Right. What we saw, though, even in that context, was when something was important, when there was a real urgency to an application, it could be done in a matter of hours from the time that they identified a target, wrote up an application and got it to a judge to be approved.

So is the administration's argument that it needed greater speed and agility and so it gave the authority to supervisors at the National Security Agency [NSA], is that a persuasive argument to you?

It's a high threshold for them to overcome. ... I'm not prepared to totally dismiss it because I don't know what the facts are here. I don't know the technologies that the administration both was attempting to counter as well as the technologies that the administration was attempting to take advantage of. I don't know whether this was a situation of vast numbers and so it was a volume issue or whether there was, in fact, a concern about whether what they were doing would meet the standard for the Foreign Intelligence Surveillance Act.

The administration asserted that these would all have met the probable-cause standard in the Foreign Intelligence Surveillance Act. If that's the case, given today's technology, the ability to churn out 1,000 applications that are all based on the same fact pattern, with just a few changes in a very quick period of time, given the Foreign Intelligence Surveillance Act window in which you can operate without a warrant -- I find those arguments not terribly compelling, that they somehow could not operate within the statutory framework. And I do find compelling when individuals like Congresswoman Jane Harman [D-Calif.], who have been briefed on the program, have concluded that it could have been done in the context of the Foreign Intelligence Surveillance Act. It raises some serious questions.

The wiretap the president described was of a call from an Al Qaeda or other terrorist overseas to somebody in the United States. It would sound as though that would be precisely the kind of call that the FISA court would issue a warrant for. ... When they say they needed greater speed and agility when they describe the program, does it make you wonder whether or not there was something much broader going on than what the president himself described?

I do think that we don't know what all was encompassed in this program or in other programs. There have been allusions in administration statements to other programs and other activities that are similar to but not the terrorist surveillance program. ...

... When the president describes what is going on [in his program] and then [former NSA Director] Gen. [Michael] Hayden gives a briefing, and then Attorney General Gonzales gives a briefing, and then there are a couple of hearings on the Hill, what's going on in your mind? ...

I was trying very hard, along with lots of other people in Washington, to figure out what exactly was going on. What was this activity that the administration was engaged in that it felt it could not do under the Foreign Intelligence Surveillance Act? So you do find yourself reading between the lines, trying to put together the bits and pieces that various individuals present to the public, to try to get a better sense of what it is that they could possibly be doing. ...

I'm still not sure, by any means, what it is that this program activity or activities encompass. I think in some cases there's been some confusion. You read analysis in newspaper articles, and you listen to experts, and they start talking about data mining. Are we talking about something that is data mining? Are we talking about actually listening to conversations, or are we talking about listening for key words? Are we talking about listening for tone of voice? For languages? What kind of activity are we talking about?

And why is that important? It's not important because we're curious about what the government might be doing. It's important to try to understand both the nature of the privacy intrusion, because each of those activities I think represents a slightly different privacy implication, and that's important in undertaking a Fourth Amendment analysis. How concerned do we need to be, and what sorts of safeguards would we want to see built in?

And also it's important to try, again, to undertake an analysis of whether this could, in fact, be done under the statutory framework that Congress has set up. It's not at all inconceivable to me that the Foreign Intelligence Surveillance Act may need to be updated. ...

Where do you get your clues [about what may be happening]?

You listen carefully to what's said in all the various contexts in which information comes out, and congressional hearings are one of the places where you listen carefully.

I remember watching Attorney General Gonzales in one of his first appearances in front of the Senate Judiciary Committee after this program, the terrorist surveillance program, became public and he was being asked a question by Senator Schumer about reports of serious disagreements within the administration. There was an incident in which the deputy attorney general, Jim Comey, had apparently, according to some public reports, objected and threatened to shut down an activity that appeared to have been a surveillance activity or activities by the NSA. Senator Schumer was asking Attorney General Gonzales about these disagreements within the administration and the attorney general responded something to the effect that: No, that was not about this program that the president has described. That was about other operational capabilities or activities.

So right there is an indication that we don't know about everything, that there are other programs or activities that were apparently even more controversial within the administration than this activity, or were at least generating some serious disagreement.

So to you, that's a sign that something else is going on and people inside the Justice Department are worried it may not be legal.

Well, are worried about it from some perspective, from some standpoint. And when the deputy attorney general, Department of Justice, raises serious concerns about a program or activity, I think it's fair to assume it's because there are questions about its legal basis.

And there was a report that the White House tried to get John Ashcroft, then the attorney general, to sign off on the program when Mr. Comey wouldn't and Ashcroft was in the hospital and he refused to sign off on it.

That's the public reports. It's pretty remarkable.

It must have taken something really bad to stop John Ashcroft from signing on a program that he had been approving for two or three years.

Well, it raises some very serious questions.

I realize that you don't know exactly what's going on. Nobody knows exactly what's going on except those who've been given classified briefings or are running the program, but what's your intelligent surmise? Is it just what the president says, the call from Al Qaeda to somebody in the United States? Or is there a broader look at the traffic on the Internet or the traffic in the phones to try to find people, to filter out who the bad guys are?

My sense is that -- again, not having access to any classified information on these lines -- is that there is a broader set of activities being undertaken. We don't know the nature of them, but we know that the administration and the intelligence community is engaged in all kinds of link analysis, where they find a known or suspected terrorist and they figure out who that person is contacting and who those people are contacting, for example. They find a phone number in a car that belonged to a terrorist, and they run that to ground, that kind of link analysis.

There are clear indications that there is a broader data analysis being undertaken, using databases that the government has access to, which it is using to try to find anomalies and try to find terrorist activity. What we don't have is a clear sense of the legal framework under which this activity is taking place.

There's an allegation made by a former AT&T technician; ... he said in a sworn affidavit that there was a splitter attached to the entire flow of the traffic through the AT&T wires in San Francisco and was diverted to a room on the floor below, and that room was operated by the National Security Agency. ... Given the context in Washington, given the kind of clues you're talking about, when you hear about a case like the case filed against AT&T, does that make you wonder whether or not data mining or some broad-scale monitoring of traffic is going on by the NSA?

It makes me wonder what sort of activity the NSA is undertaking or other elements of the U.S. government in terms of data mining. Exactly what kinds of databases are they tapping into? What are they doing with that information? What kind of action are they authorized to take on the basis of whatever might emerge from those data-mining activities? All of that is something that causes concern. …

There are people in the government, in the Justice Department, who would argue that if you applied a filter to a flow of traffic, whether phone traffic or Internet traffic, and that filter was targeted at people on whom there was a warrant for surveillance, that in fact that's a minimization procedure. It is actually protecting the privacy of the other people whose phone calls and Internet traffic went through that system.

These are the kinds of issues that I think we need to have -- as best we can, protecting national security -- some public discussion and debate [about], informed public discussion and debate. Certainly these are the kinds of issues that Congress needs to wrestle with and come to a decision with the executive branch. ...

Unfortunately, we haven't really had it in the data-mining context. When [Adm.] John Poindexter's program, Total Information Awareness [TIA], became public years ago, it was presented in such a way that the American public and Congress recoiled, and that has, I think, stifled the kind of public discussion and debate that we need to have.

The government needs to be engaged in appropriate kinds of data mining. We need to be undertaking rigorous research and development to establish those kinds of capabilities, and we need to build in every appropriate safeguard to make sure that that important activity is undertaken with full respect of the Fourth Amendment and privacy concerns and sensitivities about our way of life. And that discussion and debate hasn't happened. ...

Just to go back to this filtering device, does that strike you as a minimizing procedure, to minimize the intrusion on American privacy, or does that sound like a fishing expedition to go find some clues in a sea of data?

... It depends on how the filter is constructed. ... I think the filter is only appropriate as a minimization procedure if in fact it is able to pull out information only about individuals for whom the government has established probable cause, met the Fourth Amendment requirement, and gotten approval from a judge. ...

Then I think any time you engage in this kind of activity, you need to have audits. You need to have after-the-fact oversight. The technology must enable you to go back in after the fact and make sure that it is working the way the government claimed it would work and that you're checking not only that the technology is working the way it is supposed to be working, but that the individuals who have access to that information and that technology are not abusing it. ...

What do you think needs to be done now?

I think Congress needs to find out exactly what's going on, and I would encourage Congress to undertake a broad review, not just of the terrorist surveillance program and not even just of other electronic surveillance activity, but of domestic intelligence collection generally, particularly since Sept. 11.

My sense is that since Sept. 11, various elements of the United States government have greatly expanded their emphasis on domestic intelligence collection. It's not a secret. ... I think we need to have -- at a minimum Congress needs to have -- a better understanding of what those activities are. Electronic surveillance is a very significant aspect of that, but it's not all of the domestic intelligence collection that's being undertaken.

... Do you see a significant change in the government's ability to access information on Americans from the private sector?

I think there is a significant change in the government's ability to access information from the private sector. In some respects what I think is of greatest concern is less the government's ability to access information than what the government can do with that information. We went from a context in which you had to have a criminal predicate really for the FBI ... to begin to conduct any kind of really intrusive surveillance of an individual --

Some evidence of a crime.

Some evidence of a crime. ... The objective was primarily to result in a criminal prosecution. So over the years, many, many years of this country, we built a careful system of safeguards for that process resulting in a criminal prosecution, including a whole series of rules that prevent you from using in a prosecution information that you obtained in an abusive or illegal way.

If your goal, as it has been said after 9/11, our goal is and must be not just criminal prosecution but prevention, now you've moved into a very different realm where we have not established a careful system of safeguards to ensure that the government is only intruding in individuals' lives in appropriate circumstances.

What is of great concern about the shift under Attorney General [John] Ashcroft was this notion of "suspicious activity." Suspicious activity isn't well defined, and yet it can trigger intense scrutiny, and then that scrutiny doesn't have to go through the rigors of a criminal prosecution before the government can take negative action against you, because now we're talking about prevention. So now your name can go on a terrorist watch list, for example; you could be denied employment and never know why. It's imperative that we look carefully at that system, determine what safeguards we need to have in place to ensure that fairness and appropriate respect for privacy, while meeting absolutely essential national security needs. We need to have a public discussion and debate and a careful analysis to make sure we're doing this appropriately. ...

People in the government will say, look, before 9/11, FBI agents couldn't do what their 13-year-old daughters could do; they couldn't go on the Internet and Google somebody. ... If ChoicePoint has the information, they say, why shouldn't the government have the information? Is there a difference?

There is certainly a difference between what the government can do to you and what ChoicePoint can do to you. ... The government can throw you in jail. The government can, if you're not a naturalized citizen, deport you from the country. The government can take action with that information that I think causes individuals concern, and that is one of the reasons that Americans have greater concerns about the government having information about them than they might be about the private sector having information about them.

You talked several times, and others do as well, about making sure that privacy is not violated. The question is, what is privacy? … What is it we're trying to protect here? ...

I think we're trying to protect our ability to operate freely in this environment as long as we are complying with the laws and engaging in appropriate social behavior. We have a clear understanding that the government cannot intrude in our lives unless we are in violation of a clearly defined criminal statute, for example. There's the whole body of constitutional law that requires that a crime be very clearly defined so that an individual can know when they are in compliance with the law and when they are violating the law and can moderate their behavior appropriately. ...

If the government is collecting massive amounts of information about each and every one of us and is looking through that information to try to identify suspected terrorists, there is a worry that what they are looking for is outliers, people who stand out, who are in some way different than the masses of information that they're looking at. One of my worries is that that subtly begins to have an impact on our freedom of movement, of behavior, of action, that we begin to moderate our behavior so that we don't look odd, so that we don't stand out, so that we don't come under scrutiny, because we don't know where that line of suspicious activity is. ...

Do we, in this world of modern technology, need to lower our expectations of what privacy will be in the future?

I don't know that I would put it that way. I think the reality is that our concept of privacy has changed over time and will continue to change. We understand that and engage in that voluntarily in the private sector when we decide for convenience sake to use the grocery discount card that now creates a record of everything we buy. When we go on the Internet and put all kinds of information, either whether it's on a public social network site or in order to buy something or in order to be notified of things that meet our tastes and convenience, we have voluntarily, I think, changed the nature of privacy and our concept of privacy. And I think we will continue to do that over time.

... Does the move to pre-emption expose ordinary Americans to some kind of scrutiny and some loss of privacy that they didn't have before?

I think it has. I'm not sure the degree to which it has to. I think technology can show us a way to find the information that the government has a legitimate need for, while screening out the information that the government should not have and does not have a legitimate need for. I think technology can help us to preserve privacy.

For example, I think a lot of this data mining can be done with the data being anonymous. In other words, it is not identified with a particular named individual. There are ways in which technology can run algorithms against a series of distributed databases, for example, and it's only when it finds hits and then you are able to take that information and make out with that information probable cause to believe that that individual's set of the data that attaches to that individual, that that individual is in fact a suspected terrorist or a member of a terrorist organization.

And then I think, for example, you could take that in front of a judge and say: "This is the algorithm that we used. This is not in mathematical terms but in plain English. These are the parameters that we set up. This is the databases we ran it against. This is what popped up, and here's why we think this establishes probable cause that we ought to now be able to pierce that veil of anonymity and find out a name and be able to continue our investigation with the name."

It's an interesting dichotomy. We've talked to other people who will say technology is really pushing us in the direction of greater intrusion on people's privacy, because in an era of pre-emption you have to search lots of innocent people and clear them as opposed to starting with a guilty party and following a track.

I'm skeptical about our ability to search through masses of data on millions of people or thousands of people and pick out the terrorists with any real accuracy or effectiveness.

Why?

Because I don't think we have the ability yet to create a terrorist profile that is not going to catch a lot of innocent people. I've yet to see or hear about an algorithm that successfully does that without a significant number of false positives. That's not to say it isn't there, but I'm very skeptical about our ability to do that. ...

How do you get the kind of debate that you need to enact the kind of laws and to use technology positively in the ways that you describe? ...

... I think one of the reasons we haven't had a broader public discussion and debate about it is that so many people in America think this does not affect them. They've been convinced that these programs are only targeted at suspected terrorists. "I'm not engaged in any terrorist activities; therefore this does not concern me. There's no way in which I'm going to be caught up in this activity."

And you think that's wrong.

And I think that's wrong. I think that, as I said, our technology is not perfect, our programs are not perfect, and it is inevitable that totally innocent Americans are going to be affected by these programs, either because they are going to be put under surveillance as a result of these programs or they are going to suddenly realize that their activity has been chilled in some measure by a concern that if they do certain activities, they may suddenly fall under this scrutiny; they may have crossed the line into suspicious activity. I think we need to generate a broader understanding in the American public in the ways in which this really does impact them before we're going to get the kind of broad discussion and debate that we need to have. ...

Is there a danger that we have forgotten the lessons of the investigations by Sen. [Frank] Church's [D-Idaho] committee [the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities] back in the 1970s?

I worry that the American public has forgotten that in that context there were innocent Americans who were put under surveillance by their government, who had files kept on them by their government, and that it was not just bad actors who faced this kind of scrutiny. … And I worry that Congress is forgetting some of the lessons about what can happen if you really don't engage in the kind of rigorous oversight that the American public expects of the intelligence oversight committees and of its Congress. ...

When you're in government, are you thinking about that?

As a lawyer, yes. Particularly as a lawyer in the intelligence community, as a lawyer in the national security context, one of the things that you worry about a lot is remembering who your client is. There is a real temptation to think that your client is that executive branch official who's asking you the question or who you're advising. And it's important to remember that your client is the American public and the Constitution and that sometimes you have to tell the official who thinks that you are their lawyer and that they are your client news that they don't want to hear; that in fact they can't undertake the activity that they'd like to undertake, because it is in violation of law or the Constitution. ...

Do you think there's been a consequence, there's been damage from the way the administration handled the warrantless surveillance program?

I think the way this warrantless surveillance program was handled harmed national security in very real ways.

First of all, we have the leak of certain details about this program. ... Why did this program leak? I believe it leaked because intelligence professionals at the National Security Agency who are committed to the rule of law had very real concerns about the legality of this program and felt compelled to go and tell somebody that they thought illegal activity was taking place in their intelligence community, and I think that's because of the failure of this administration to put this on a solid legal footing. Reports indicate that the program was shut down for some period of time. Again, if this program is so essential to national security [that] to have disagreements apparently about its legal authority cause the program to be shut down for several weeks, that harms national security.

The way in which it was conducted and the mistrust that has resulted also makes it harder to get Congress to act in the future to meet needs that the administration will bring before it, whether it's another authorization for the use of military force, which they now worry the administration will interpret as authorizing all kinds of activities or whether it's even just doing things like amending the Foreign Intelligence Surveillance Act. The mistrust that's been created is going to hamper our ability to create the legal framework we need to effectively combat terrorism going forward. ...

In the international context, where we know we need to have strong support from our allies in order to meet this global threat, our failure to convince the world that we do indeed have respect for the rule of law has already and will continue to hamper our ability to get that kind of cooperation. So in a very real sense, the decision to go forward on this program on such shaky legal grounds has had very real national security consequences.

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posted may. 15, 2007

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