Transcript for February 12

MR. RUSSERT:  But people go back to, Democrats and Republicans, many, to the law, and they’ll say the law is very clear:  You cannot engage in this activity unless authorized by statute. Vice President Cheney offered this: “When we were hit on September 11^th” he “was granted,” the president, “the authority by Congress to use all necessary means to take on the terrorists. And that’s what we’ve done.”

Congressman Hoekstra, do you believe that the authorization to go to war, passed by Congress in 2002, excuse me, September 15, 2001, to go into Afghanistan, to take out al-Qaeda and the Taliban, that authorization granted the president the authority for this eavesdropping program?

REP. HOEKSTRA:  Eleven-fifteen 2001 we were concerned about one thing; we were concerned about taking out al-Qaeda. We authorized the president, “If you find bin Laden in Afghanistan or if you find him in Pakistan, you’ve got the authority to take this guy out. You’ve got to—the authority to take out his operatives.” But on one—on 11/15, we were concerned about the operatives in the U.S., his—his operatives.

MR. RUSSERT:  September—September 15.

REP. HOEKSTRA:  Yeah, September 15, 2001. And to believe that we gave the president the authority to kill bin Laden, but if he was on his cell phone we said, “Oh, but if you want to listen to him calling into the United States, perhaps planning the next attack,” because we didn’t know what that might occur, “I’m sorry, you’ve got to go to the court, and you’ve got to do this one-inch thick document, and you’ve got to have a legal review before you can actually listen to what bin Laden is saying.” Intercepting communications from your enemies is an essential element of war. We’ve—it’s always been a key component conducted in war.

MR. RUSSERT:  So you believe the authorization passed in September of 2001 granted the president the authority for eavesdropping.

REP. HOEKSTRA:  We gave the president to conduct—we gave the president the necessary authority to use the tools to effectively fight and eliminate al-Qaeda. Absolutely.

SEN. ROBERTS:  And he already has that under the Constitution anyway.

MR. RUSSERT:  Well, President Carter, when the signed the FISA Law said that, “This bill, this statute, will, in effect, clarify the executive’s authority.” So there was a debate as to whether or not the president had the authority to eavesdrop under the Constitution.

REP. HARMAN:  But, Tim, Tim, Tim...

SEN. ROBERTS:  Yes, but those weren’t...

MR. RUSSERT:  Yeah.

SEN. ROBERTS:  But those are phone calls from within the United States to the United States. These are phone calls from terror cells that we had reason to believe, probably cause, are plotting an attack on the United States. And the FISA Act, as I say, it’s a good law as far as it goes. But the time delay and the threat that we’re faced today are different. Now, if we choose to go ahead and fix FISA, which was considered and then drawn back by the same people that were in the room and I was in the room when that happened, decided, “How do we do this?” And the end result was we would end up with the same kind of a program. So it wasn’t the doing of it that was the question. It was, “Well, let’s go ahead because we have to protect the country.”

MR. RUSSERT:  Senator Daschle, you wrote an opinion piece for The Washington Post about the debate leading up to the war. And I want to read through this very carefully because it is part of the history, legislative history, and come back and talk about it. You write, “On evening of September 15--September 12, 2001, the White House proposed that Congress authorize the use of military force to, quote, ‘deter and pre-empt any future acts of terrorism or aggression against the United States.’ Believing the scope of this language was too broad and ill-defined, Congress chose instead, on September 14, to authorize, quote, ‘all necessary and appropriate force against those nations, organizations or persons the president determines planned, authorized, committed or aided’ the attacks of September 11. With this language, Congress denied the president the more expansive language—more expansive authority he sought, and insisted that his authority be used specifically against Osama bin Laden and al-Qaeda. Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text.” This would be the proposed wording from the White House, “all necessary and appropriate force in the United States and against those nations, organizations, persons the president determines planned, authorized, committed or aided the terrorists attacks that occurred on September 11.” Back to your piece. “This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.” Did anyone mention eavesdropping to you when they sought to change that language?

SEN. DASCHLE:  They didn’t, Tim. Tim, there were actually two pivotal moments. That was one, what should be the scope of the president’s authority as we told him to. He had our complete support in using all necessary means. And the article lays it as clearly as I know how to lay it out. We said “concerning activities abroad,” not within the United States.

But there was a second pivotal moment. And that was in December with the reauthorization of the intelligence legislation that comes before Congress every year until this year. But—and that specifically dealt with the president’s request to change FISA. We said to him, “Look, if FISA isn’t working to your satisfaction, what would you have us do?” And we did two things. One was we gave the president retroactive authority. There isn’t any requirement today that the president go before FISA before the action. They now have 72 hours to act and then can come back retroactively and ask FISA to make a decision. And they don’t—there’s no vote required of the FISA court. One judge has the ability to do that. So we changed it from 24 hours to 72 hours and we made it retroactive.

Now, the other thing that I might say is that even before those changes, you had 17,000 requests and only a handful, around seven or eight, requests that were actually denied over the time that FISA has been in position. The final thing I’d say is, up until then people cited the Constitution as the sole authority for making these actions. Now since FISA, you can’t do that. FISA, constrained—or clarified the Constitutional authority, and that’s exactly what we did again in December of 2001.

REP. HARMAN:  Can I add to that?  In the Steel Seizure Case, which is cited as a grab of presidential power by President Truman, the Court—the Supreme Court said that the president’s power is at its lowest ebb if Congress has acted. That was the reason that, in 1978, President Carter, who signed FISA, said this is the exclusive remedy. He did a signing statement, which we’re getting more traction these days. But, also, that was the legislative history of the statute. It’s the exclusive way to eavesdrop on Americans in America. And that is why this late claim that the authorization to use military force, which was never considered, at least contemporaneously, to give this power to the president, is a weak claim, and that is why we should bring all of this activity under FISA. And to Senator Roberts, my friend, I remember all those efforts to change FISA. We asked the president if he needed more authority. He’s the one who requested the 72-hour delay, longer than 24 hours, which had been the standard before. He requested that it extend to roving wiretaps and e-mails, all the modern communications methods. It’s not a quaint statute. FISA lawyers say it takes less than a day to prepare a filing, and they can be prepared orally in an emergency.

MR. RUSSERT:  Here’s where I’m confused, because...

SEN. ROBERTS:  Actually, that’s not true, Tim. If you’ve got five days, eight days on one of the threats that we were briefed on, you’ve got to act within minutes and hours. If you have 10 dots here and you have 100 dots to get the full picture and you’re waiting days and you may be missing these communications, it may be too late.

MR. RUSSERT:  Then why not go to Congress and say that, and request a change in the statute that would allow this activity specifically?  What’s the reluctance to go to Congress?

SEN. ROBERTS:  I think that they do—I don’t know, this—I have some memory pills, I think everybody here ought to take a memory pill every morning on the recollection of, you know, what really went on, because that’s not my recollection. My recollection was that we just sat there with the people who did the briefing, I’m not going to say who, and they said, “Do we need to change this law?” And we started to really figure out what jurisdiction, how we could change it, how we could streamline FISA, because it is outdated because of the time constraints and because of the stack of materials that they have at FISA. And don’t tell me that isn’t there, because I’ve just been there. OK?  So here we have a situation where we need to change the FISA law, and everybody said, “Well, what jurisdiction is—and then you’re going to have to reveal the operational details.” One of the concerns I had was that some people were saying, “Well, maybe we could just put a line in here,” or—you know, like the manager’s amendment that we do in the Senate, or whatever, in the House, and say, “Just get it done.” You can’t do that. You’ve got to say, “What are we doing?  How are we doing it?” Give it to the jurisdictional committees, and then we will see exactly what happened in The New York Times whether the program is going to be followed.

MR. RUSSERT:  But, Senator, if you believe that the president had the authority to do this with the statute in September of 2001, “Use all necessary means,” then why not go to Congress and say, “We need the president to have the authority to do domestic eavesdropping against phone calls that either originate here or overseas when there’s indication that it involves al-Qaeda,” period, and put that before a vote of Congress?  Why not ask for the authority?  What’s the fear?

SEN. ROBERTS:  He already has the constitutional authority, regardless of the use of force issue, as did Roosevelt when the Supreme Court said, “No, you can’t do that,” and he did it anyway and said, “It’s too late after an attack.” But he needed this extra—what?--this extra authority or this extra program, this capability to say, if you have a terror cell here, they’re plotting against the United States, they called the United States, then we at least have the time frame that we can act.

MR. RUSSERT:  Well, let me refer you to Buffalo, New York—a great town—up in—back in April of 2004.

SEN. ROBERTS:  Even colder than it is here now.

MR. RUSSERT:  It’s a great town. April of 2004, the president’s in the middle of the campaign, and this is a big issue, the whole idea of the war on terror. And this is what the president said to the American people in Buffalo.

(Videotape, April 20, 2004)

PRES. BUSH:  Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretape requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.

(End videotape)

MR. RUSSERT:  Did the president tell the truth?

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