Transcript for February 12

REP. HOEKSTRA:  This is a false description of saying that the president took the authority by himself to do whatever he wanted to do. Almost immediately after this decision and this program was put in place, the president went to the leadership of Congress and shared with them the program of what he was doing. And, you know, I have trouble accepting the fact that if there are members of Congress, the House or the Senate, who believe that the president is breaking the law, that they’re saying, “Don’t worry about it, just go ahead.” If the president’s breaking the law, it is our responsibility to stop it until we fix the law.

MR. RUSSERT:  Should the Democrats have tried to stop it?

SEN. DASCHLE:  Well, I think there have been efforts, and we’ve documented those efforts, to try to change it, to try to warn the president, not only—but it’s not only the Congress, Tim, we’re talking about the chief justices of the FISA court itself, who—who actually terminated the—the utilization of the law for a couple of periods of time. What good is a law if the court themselves is—are stopping it. You know, we’re in this—they’re now calling it the long war. Well, this is going to be the long war. We have to make sure that we have the full support of the American people, and you’re not going to have the full support of the American people if these doubts continue to surface, and real questions and debate about its utilization continue to—to undermine our ability to use the law.

MR. RUSSERT:  We have to take a quick break. We’ll be right back with more of our discussion about domestic eavesdropping without court warrants, the constitutional, legal and political ramifications, right after this.

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MR. RUSSERT:  Domestic eavesdropping and the war on terror. More of our conversation after this.

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MR. RUSSERT:  And we’re back with our discussion on domestic eavesdropping. James Risen broke this story in The New York Times. He says that the information was provided to him by a whistleblower, who was concerned about the constitutionality of this program. “Porter Goss, the head of the CIA, asserted that leaks had done very severe damage to the national security and declared that the leakers would be found. ‘I have called in the FBI, the Department of Justice,’ Mr. Goss said. ‘It is my aim, it is my hope that we will witness a grand jury investigation with reporters present, being asked to reveal who is leaking this information.’”

Congressman Harman, should members of the press be called in by a grand jury and asked where they got the information?

REP. HARMAN:  Well, this is getting messier and messier. We just saw that in the Valerie Plame investigation. If the press was part of the process of delivering classified information, I think there have to be some limits on press immunity. I—the Goss article was, again, ironic because it came out the same day that there was another selective declassification, this time of the fact that there was a plot that was thwarted, thank goodness, to bomb the Library Tower.

MR. RUSSERT:  But if this came from a whistleblower—if this came from a whistleblower, should The New York Times reporter be subpoenaed?

REP. HARMAN:  Well, it’s not clear it was a whistleblower. You have to prove that first. No. The answer is if it’s protected under the whistleblower statute, then it’s protected. Goss in his op-ed said he was trying to protect whistleblowers, but these were despicable people going around the process.

The problem is, however, that Congress is being cut out. Senator Mike DeWine said, I think very impressively on Monday in the Senate Judiciary hearings, that it’s good to have Congress on your side. Having these closed briefings of eight members of Congress when we can bring no tools into the room and talk to nobody, is not full consultation with Congress. The right thing to do here is to meet with the Congressional Committees, disclose the program and have us work together to make sure it complies with the law. We’ve seen this movie before. It was called, “Torture CID.” We just went through this. And finally, the administration was forced to comply with the law that Congress passed by overwhelming majorities. And we’re going to get to the same closing scene in this movie.

MR. RUSSERT:  Congressman Hoekstra, should the reporters be subpoenaed?

REP. HOEKSTRA:  Yeah, these are not whistleblowers. There’s a process for whistleblowers to go through their agencies or to come to Congress. The whistleblower process doesn’t say, “Go to The New York Times and let The New York Times decide whether something is vital to our national security or not.” You know, there’s a real threat out there. We need to be prepared to fight this threat. We had the tools in place. The New York Times released it, and James Risen had an economic interest in this. His book came out four weeks after The New York Times published this in their newspaper. That’s not appropriate.

MR. RUSSERT:  But if this is a—but if this is a serious and legitimate constitutional debate between executive and legislative authority, shouldn’t the media be allowed to report on that from someone who was inside government who is troubled by this program?

REP. HOEKSTRA:  If this person is troubled in government, there are a series of steps that they can take so that they do not jeopardize national security. They can go through their agencies. They can go through their inspector generals. They could come to the committees. They can come to Pat, myself, or Jane and say, “We are very, very troubled by what this administration is doing. You need to take a look at this.” They didn’t go there. It appears that they went directly to The New York Times, they went directly to James Risen. That is the wrong thing to do. You know, America’s...

MR. RUSSERT:  They may have feared for reprisal. They may have feared that Congress wouldn’t do anything.

REP. HOEKSTRA:  Well, that’s not their decision to make. Congress has outlined the laws by which this will happen. Their responsibility and their oath to keep these secrets confidential says this is how the whistleblower process works. It’s not in their option whether they’re going to abide by this law or not. The process is laid out. If that individual decides to use a process outside of the law or in violation of the law, they do it at their risk.

MR. RUSSERT:  Senator Daschle, should reporters by subpoenaed?

SEN. DASCHLE:  Well, Tim, I deplore leaks and I think a lot of what Congressman Hoekstra has said is right. We should try to discourage it at all costs. But I have to say, the administration and many in Congress have a very significant double standard when it comes to leaks. There wasn’t any resistance—there was a great deal of resistance on the Valerie Plame investigation on who leaked that. You know, now you’ve got the vice president actually authorizing leaks at times. And no one seems to be challenging that. So, I think there ought to be an investigation of NSA. In fact, you wouldn’t even have this as a story if the president had been biding by the law itself—the F.S.A. law requiring him to get the authority. So, there’s a substantive question that ought to be asked here:  What is the problem with the NSA?  And how can we fix it if it needs fixing?  But, of course we have to go after the leaks. I don’t think that—I’m very concerned about any infringement on reporters’ rights to investigate wherever the news may take them.

MR. RUSSERT:  Do you think reporters should have to reveal their sources or go to prison?

SEN. DASCHLE:  No, I do not.

MR. RUSSERT:  Senator Roberts, I want to ask you the same question, but add into it Congressman Harman’s comments and Senator Daschle’s comments about the vice president. This was the National Journal on Thursday. “Vice President Dick Cheney’s former chief of staff, I. Lewis ‘Scooter’ Libby, testified to a federal grand jury that he had been ‘authorized’ by Cheney and other White House ‘superiors’ in the summer of 2003 to disclose classified information to journalists to defend the Bush administration’s use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records.”

SEN. ROBERTS:  Mm-hmm.

MR. RUSSERT:  Should there be an investigation into that leak by the vice president?

SEN. ROBERTS:  The executive basically has control over what’s classified and what isn’t. It could very well be that we don’t know yet whether that information was declassified and was actually given as purported in the press. That has to play out in regards to grand jury proceedings.

MR. RUSSERT:  But should we find out?  If there’s been an allegation made that in fact classified information was leaked, should there be an investigation?

SEN. ROBERTS:  Oh, I think—I think we ought to find out every allegation. My God, how many investigations have we had here on the board now?  If we investigate the NSA, you’re shooting the messenger. As I say, I have paid a visit out there. These people are dedicated, they are—they have great expertise, you sit next to lawyers, you go through checklists in regards to make sure that they’re following the law exactly. That’s exactly the wrong place to do any kind of an investigation.

And I might add in regards to this effort to brief the full committees, I will give the administration some credit, and had something to do with it, by the way, and I think the reception on the House side was much better. I think Jane and Pete all said that everybody came out of there feeling a little better about the program, like to know more about it, but then you get into operational details and you worry about leaks.

We have the same thing on our side. We had a pretty good session, but then immediately after that session, we had two senators issue a press release on the very one thing that we talked about in regard—I can’t say that—the very one thing that was the most sensitive issue of all. So, you know, who leaks around this place, I don’t know.

I remember when we had the investigation on the 9/11 investigation joint House/Senate Intelligence Committee. And then there was an intercept, an NSA intercept, and it was leaked to the press—had nothing to do with 9/11 but it was very incendiary. The time is now, the match is burning, OK?  And so the president said, “Whoa!  Wait a minute. Stop!  Stop the whole thing. I’m not going to give you anything.” And then the FBI was granted permission to investigate the Congress when we were investigating the FBI. How silly was that!

So it does happen from Congress. I suspect it’s some Justice Department guy by a water cooler who’s upset about this or it may even be—perish the thought—a FISA judge whose basic, you know, feelings or ego is second only to that of senators.

MR. RUSSERT:  But if you do not believe that the NSA should be investigated for a leak, then do you think that a reporter should be subpoenaed, brought before a grand jury and forced to testify who...

SEN. ROBERTS:  Well, you’re talking to an old reporter. You’re talking to a journalist. If you look in the bio, it says, “Roberts:  journalist.” That’s an unemployed newspaperman. OK?

MR. RUSSERT:  Do you believe reporters should have to testify before a grand jury?

SEN. ROBERTS:  Yes, I do.

MR. RUSSERT:  And reveal his sources.

SEN. ROBERTS:  That’s a tough call, and it has gone back and forth, and back and forth. And you get in the soup, and it lasts about two or three years. I think—I think the effort to try to get something like that done is probably proper. We did have a bill before the Senate Intelligence Committee said, “If a reporter, or anybody, intentionally leaked something, that then it would be something that obviously it would be a felony.” Now that bill, I—I think it actually passed the Senate Intelligence Committee and then it went nowhere because of all the fourth estate getting upset.

MR. RUSSERT:  Well, why would you have a different standard for a reporter than you would have for a government official?

SEN. ROBERTS:  No, I mean, it would mean anybody. If anybody leaked information intentionally—now you can do it unintentionally—and on that basis, I think you have a different standard.

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