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The NSA & Domestic Surveillance

In response to a barrage of criticism, President Bush said Monday he did not break the law when he authorized spying on Americans suspected of ties to terrorism. Following a background report, two senators discuss the use of domestic surveillance in the anti-terrorism effort.

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  • RAY SUAREZ:

    The president's primetime White House address last night and four major Iraq policy speeches in the last two and a half weeks all were timed to coincide with last Thursday's parliamentary elections in Iraq.

    Those appearances, plus interviews with several major television news programs, were part of an effort by the administration to reverse slumping approval ratings and allay worries over the continued insurgency in Iraq.

    During last night's address — the president's first from the Oval Office since the invasion of Iraq in 2003 — Mr. Bush admitted some mistakes in conducting the war and its aftermath. But the president made a direct appeal to the war's opponents.

  • PRESIDENT GEORGE W. BUSH:

    I have heard your disagreement, and I know how deeply it is felt. Yet now there are only two options before our country: Victory or defeat.

  • RAY SUAREZ:

    However, during the president's year-end news conference this morning, the bulk of the questioning did not concern Iraq. At issue was the president's weekend acknowledgment that he had approved domestic spying on suspected terrorists without court approval.

  • REPORTER:

    And why did you skip the basic safeguards of asking courts for permission for the intercepts?

  • PRESIDENT GEORGE W. BUSH:

    Well, I — first of all I — right after Sept. 11, I knew we were fighting a different kind of war, and so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want.

    We looked at the possible scenarios, and the people responsible for helping us protect and defend came forth with the current program because it enables us to move faster and quicker. And that's important.

  • RAY SUAREZ:

    Existence of the program, carried out by the National Security Agency, was first reported in Friday's New York Times. It triggered an outpouring of criticism by Democrats, and some Republicans like Texas House Republican Ron Paul:

  • REP. RON PAUL:

    We all should be dedicated to protecting the privacy of all Americans, and never giving permission to a narrow group of people in the executive branch.

  • RAY SUAREZ:

    Senate Democrat Carl Levin of Michigan said the president should have used FISA, the nearly 30-year-old Foreign Intelligence Surveillance Act, which allows for efficient, timely and legal avenues for eavesdropping.

  • SEN. CARL LEVIN:

    He does have to move quickly at times, and that's why the FISA law says move first, and then notify the court and seek their authority afterwards. So he can't just simply use the necessity to move quickly as an excuse to bypass the law which we put in place, which is the true check on the executive power, the laws that Congress passed, including the FISA law.

  • RAY SUAREZ:

    And there is clear language on what constitutes a violation of the FISA law. A person is guilty of an offense if he intentionally engages in electronic surveillance under color of law, except as authorized by statute.

    But Mr. Bush today argued his actions were within the law, thanks to the 2001 congressional resolution permitting the use of force to fight terrorism in the wake of the Sept. 11 attacks.

  • PRESIDENT GEORGE W. BUSH:

    I — you know, I swore to uphold the laws. Do I have the legal authority to do this? And the answer is absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution as well as the authorization of force by the United States Congress.

  • RAY SUAREZ:

    And this morning, Attorney General Alberto Gonzales backed Mr. Bush, arguing the president had the right to act partly because FISA is outdated.

  • ALBERTO GONZALES:

    We have to remember that the Foreign Intelligence Surveillance Act was created in 1978, and technologies have changed dramatically.

  • RAY SUAREZ:

    But New York Senate Democrat Chuck Schumer said the Bush administration should have consulted Congress if it was unhappy with FISA.

  • SEN. CHARLES SCHUMER:

    And my guess is we would have given them what they wanted. We just would have made sure there were safeguards there. They have sort of an attitude "we can do whatever we want;" that's not the Constitution is structured.

  • RAY SUAREZ:

    But the president stood his ground before the White House press corps this morning, calling the secret surveillance techniques an essential element of the war on terror, one he has no plans to stop using.

  • PRESIDENT GEORGE W. BUSH:

    And it has been effective in disrupting the enemy while safeguarding our civil liberties. This program has targeted those with known links to al-Qaida.

    I've re-authorized this program more than 30 times since the Sept. 11 attacks, and I intend to do so for so long as our nation is — for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens.

  • RAY SUAREZ:

    The Congress can be expected to have more to say on the issue. Arlen Specter, chairman of the Senate Judiciary Committee, said yesterday there are limits as to what the president can do, and he promised to hold hearings on the wiretaps after Congress returns in January.

    For more on the debate over domestic surveillance we are joined by two members of the Senate Judiciary Committee: Republican John Cornyn of Texas and Democrat Russ Feingold of Wisconsin.

    And, Sen. Feingold, let me start with you. The attorney general says that the president's authority to make those surveillances of phone calls comes from two sources, the Supreme Court's decision in Hamdi versus Rumsfeld, and your own vote along with your Senate colleagues in authorizing the president to use force against terrorism. Was it legal?

  • SEN. RUSS FEINGOLD:

    No, it was not. And the president cannot make up authority and legislative power when it isn't there.

    There are only two ways you can get a wiretap in this country: one is under the Criminal Code Title III or under the Foreign Intelligence Surveillance Act if you go to the court.

    But the president didn't do that here, he has admitted that. He just went ahead and did this wiretapping on his own without any legislative authority. And the idea that somehow when I voted for the invasion of Afghanistan that I was voting to allow some kind of new wiretap in the United States of America domestically to me is one of the worst arguments I've ever heard.

  • RAY SUAREZ:

    Well, Sen. Cornyn, from your own experience in Texas, you know your way around the statutes as anybody, what do you think of Attorney General Gonzales's legal reasoning?

  • SEN. JOHN CORNYN:

    Well, I know that the Foreign Intelligence Surveillance Act was passed in 1978. And certainly there must have been some authority that preceded that act to authorize a president to deal with foreign agents and intelligence gathering to protect Americans here on our own soil.

    So I really believe that the Constitution provides the president some authority and the Foreign Intelligence Surveillance Act is not the exclusive authority.

    But I think, you know, clearly the first and foremost issue is what do we need to do during a time of war to keep our people safe. And if the president has that authority, then I would expect him to use it.

  • SEN. RUSS FEINGOLD:

    Actually the Foreign Intelligence Surveillance Act says explicitly in its language that it is the exclusive authority. It is, in fact, the decision that was made, in fact, what was going on, I would say to my friend from Texas, is prior to this period there were enormous abuses in this area under J. Edgar Hoover, and the Congress realized they had to have some kind of rules and we came together as a country and said look, normally you have to go through the criminal code to do this of course, that is the rule basically under our Constitution and Bill of Rights.

    But in extreme circumstances, such as terrorist situations and others, there would be these limited circumstances. And in fact, this FISA law, this court will allow the president to go in there for 72 hours and wiretap without a warrant. He can do any kind of emergency situation as long as he comes and gets that warrant at the end of 72 hours. And to me that's more than adequate and the president hasn't shown any problem with that.

  • RAY SUAREZ:

    Well, Sen. Cornyn, Sen. Feingold made it clear what he thinks. Do you think that if the executive branch had had problems in using FISA, that they should have come to you and the Senate and expressed some of those misgivings and perhaps had you responded to it in statute?

  • SEN. JOHN CORNYN:

    Well, it's clear that the Constitution is the fundamental law of the land. And Sen. Feingold may have his opinion. I just disagree that Congress could restrict the constitutional power of the commander in chief to do what is necessary in order to protect American lives.

    Now that's not to say that Congress doesn't have a role. And indeed, Congress has acted in this area, with the Foreign Intelligence Surveillance Act.

    But to suggest that there's some conspiracy here to deprive Americans of their civil liberties when, in fact, this was narrowly applied to agents of al-Qaida operating in the United States and through international telephone calls really strains credibility.

    I'm as concerned about civil liberties as Sen. Feingold; I just don't believe that we ought to hamper unnecessarily the authority of the government to protect Americans and to keep us safe.

  • SEN. RUSS FEINGOLD:

    Let me agree with Sen. Cornyn that the Constitution is the basic law of the land. And in that Constitution is the Bill of Rights and within the Bill of Rights is something called the Fourth amendment, which protects Americans from unreasonable searches and seizures.

    Now that's the only thing in the Constitution that relates to this topic. There is nothing in the Constitution that says, yeah, the president can go ahead an wiretap whoever he wants without our system of government, which by the way is also set up in the Constitution.

    And that is a system where the Congress makes the laws and the president signs them. The president doesn't just make up whatever laws he feels like when there is no constitutional authority whatsoever for simply setting up wiretaps.

  • RAY SUAREZ:

    Well, Sen. Cornyn, let me ask you if there is architecture that exists. If the attorney general, if the president, if the secretary of defense is finding working under the current legal guidelines to be onerous, to be difficult, if there is mechanics for them to approach your committee, other committees in both the Senate and the House and ask for relief so that the laws can be written in a different way?

  • SEN. JOHN CORNYN:

    Well, Ray, part of the problem is the need for speed when it comes to intercepting the communication of al-Qaida operatives in the United States and over telephone calls. And the FISA procedure, the judges actually rule rather expeditiously once they are given the case. But the application process takes a number of days.

    And in that period of time I can understand why under exceptional circumstances the president in consultation with the Congress — they consulted 12 times with leaders on a bipartisan basis here in the Congress and no one to my knowledge objected — I can understand why they would need greater speed and flexibility in intercepting this and perhaps stopping another attack on our own soil.

  • RAY SUAREZ:

    I asked because Attorney General Gonzales said in response to a reporter's question, we had discussions with certain members of Congress whether or not we could get an amendment to FISA, and we were advised that this is not something we would likely get, certainly not without jeopardizing the existence of the program and therefore killing the program.

    So they went ahead once they found they couldn't — in his view — couldn't get the legal relief they wanted. Is that what the executive branch should be doing when it feels that it can't get relief, just go ahead and do what it wants to do?

  • SEN. JOHN CORNYN:

    Well, if the executive branch has the authority under the Constitution under resolutions passed by the Congress, then I believe that they should use all lawful authority necessary to get information that will save American lives.

    Now the problem — the distinction I would make between what Sen. Feingold said about the Fourth amendment and searches and seizures is we learned on Sept. 11 that a prosecution mindset that we would prosecute crimes after they occur is inadequate in a post 9/11 world.

    We need to be able to get intelligence on an expeditious basis and intercept these before and to disrupt the terror cells before they can kill Americans. And that's why the need for this additional authority.

  • RAY SUAREZ:

    What about that senator, if you respond specifically to that, that idea that sometimes there are needs to run ahead and try to get ahead of people who mean to do you harm rather than waiting for a crime to be occurred.

  • SEN. RUSS FEINGOLD:

    That's what I just said a few minutes ago. I don't understand how anyone cannot understand what is in this foreign intelligence law.

    They can — they can wiretap somebody for 72 hours without any permission at all. They can just start doing it. And during that time period yes, they have to prepare the papers and ask for an extension.

    But, in other words, this argument that time is of the essence, everybody understood that when they created the Foreign Intelligence Surveillance Act.

    So I want to go back to your earlier question which is, you know, you were told — this is something that is already set up. There is already plenty of protection to go after terrorists and gather that information. No, you can't just make up your own law because you don't like it.

    This law is totally sensitive to the need of being quick and efficient and going after terrorists. And what the president has done here in my mind is plainly illegal.

  • RAY SUAREZ:

    But in your familiarity with the operation of the law, is 72 hours enough?

  • SEN. RUSS FEINGOLD:

    I have heard no complaints. I have heard of no denials of these requests.

    I have not — there is no evidence at all and I have been involved on the Judiciary for many years. No one has ever said that the FISA procedure was too slow when you consider the 72 hour period; this is something that is just sort of being made up now as we go along.

    In fact, even in the early hours when this revelation came out, no one claimed that the FISA procedure wasn't adequate; they just simply decided to do their own thing.

  • RAY SUAREZ:

    Sen. Cornyn, is this an argument we should be having in public in the first place?

  • SEN. JOHN CORNYN:

    Well, I regret the fact that The New York Times has seen fit to divulge, after holding the story for a year, the night before the vote on reauthorization of the Patriot Act this story which basically covers a classified program with regard to sources and methods to gather intelligence on foreign agents.

    Obviously now our enemies know all about this. And that's a concern. But I go back, Ray, to the fact that over these years since this procedure was adopted, that leadership in the Congress on a bipartisan basis were consulted and no one, to our knowledge, objected.

    This is an alternative way to get the information. There is a legal basis, an arguable legal basis, and I think hearings are appropriate. But we're not going to be able to do those outside of a classified setting if we're going to protect the means to gather intelligence on foreign agents who want to kill innocent Americans.

  • RAY SUAREZ:

    And Senator, just to be clear, you don't think that as a result of these disclosures the program is necessarily dead?

  • SEN. JOHN CORNYN:

    I don't think that it's necessarily dead. But I do – obviously, there's Sen. Specter, the chairman of the committee on which Sen. Feingold and I serve, the Judiciary Committee, said he wants to have hearings.

    I support the idea of hearings because I think we need to explore whether there are unnecessary impediments to getting the information that we need in order to keep Americans safe.

  • RAY SUAREZ:

    And finally, Sen. Feingold, you opened by saying that you thought the president and his associates were breaking the law. What do you do about that?

  • SEN. RUSS FEINGOLD:

    Well, the first step is what Sen. Cornyn has suggested. There will be hearings with regard to what the — what has been done here and what the legal justifications are, which I'm very skeptical about.

    And then if it turns out the law has been broken, which I suspect, then we have to consider the proper remedies. But I think what the president and the attorney general here have done is reckless and unjustified and unnecessary. And there needs to be accountability for it.

  • RAY SUAREZ:

    Senators, I want to thank you both for being with us tonight.

  • SEN. RUSS FEINGOLD:

    Thank you.

  • SEN. JOHN CORNYN:

    Thank you, Ray.

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