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updated 2/12/2006 12:57:55 PM ET 2006-02-12T17:57:55

TIM RUSSERT: Our issues this Sunday: President Bush insists Congress was briefed about his plan for wiretapping without a court order. What information was shared?  When, and in what form?  With us, four of the very few congressional leaders who had notice of the eavesdropping plan: former Democratic leader of the Senate, Tom Daschle of South Dakota; the ranking Democratic member of the House Intelligence Committee, Jane Harman of California; Republican chairman of the House Intelligence Committee, Pete Hoekstra of Michigan; and the Republican chair of the Senate Intelligence Committee, Pat Roberts of Kansas. A special edition of MEET THE PRESS on the Constitution, legal and political ramifications of domestic wiretapping.

Good morning and welcome, all. A very complicated but important subject this morning. Let me start with the president’s comments in December at a news conference after the plan had been revealed by The New York Times, and then some follow-up comments he made in January. Let’s watch.

(Videotape, December 19, 2005)

PRES. GEORGE W. BUSH:  And I authorized the interception of international communications of people with known links to al-Qaeda and related terrorist organizations. The program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program.

(End videotape)

(Videotape, January 23, 2006)

PRES. BUSH:  When people say to me, “Well, he’s just breaking the law,” if I wanted to break the law, why was I briefing Congress?

(End videotape)

MR. RUSSERT:  Senator Daschle, you were the leader of the Democrats when this plan was put in place by the president. Were you briefed?  And to what extent?

SEN. TOM DASCHLE, (D-S.D.):  Well, I can’t get into the details, Tim, obviously because this is very sensitive information. We were briefed. We were not given all of the information that was—has been reported. There were many omissions, given what we were told then and what we now know. And so, yes, members of Congress were briefed, but it was far less than the comprehensive understanding of what was going on that many of us have today.

MR. RUSSERT:  In those briefings, did anyone raise objections to the plan?

SEN. DASCHLE:  Objections were raised both orally and, as you know now, Nancy Pelosi and others, Jay Rockefeller expressed real concern about these actions and about the approach that was now being employed by the administration.

MR. RUSSERT:  Senator Roberts, you were part of the team of leaders that was briefed in Congress. Is that your recollection?

SEN. PAT ROBERTS, (R-Kan.):  I hate to quarrel with my good friend, Tom, but my recollection—I have to search my recollection. And we were briefed. At every opportunity at these briefings, during the briefing, those that did the briefing would say, “Do you have questions?  Do you have concerns?  Do you need additional briefings?” I think that in my situation, I knew exactly what was going on. I don’t have the—I just don’t have the same take on it as my good friend here, and so consequently, I think I was fully briefed and I was very comfortable with the program, and I think it’s extremely valuable and my main concern is that we may lose it under the circumstances.

MR. RUSSERT:  Senator Rockefeller, who’s the vice chairman of your committee, did write a letter to Vice President Cheney in July of 2003 after one of the briefings.

SEN. ROBERTS:  Yes.

MR. RUSSERT:  And here it is on the screen. “Dear Mr. Vice President, I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today. Clearly, the activities we discussed raise profound oversight issues. Without more information and the ability to draw on any independent or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.” That seems to be real doubt.

SEN. ROBERTS:  Well, you know, that letter was kept in a safe for three years, and a senator or a congressman has many tools that you can use if you are upset with a program. In my conversation with Senator Rockefeller, he never mentioned to me, A, the letter and, B, those concerns, and we could have in the committee taken up some of those concerns. The extreme thing that you could do is simply de-authorize the program. So I’m a little puzzled by that; feigning helplessness, you know, to me, doesn’t really represent a tool that you can use. Senators have a lot of tools that you can use, and that simply was not done.

MR. RUSSERT:  Without violating your oath not to reveal anything that you’ve been told in the committee?

SEN. ROBERTS:  I’m sorry, I’m not quite...

MR. RUSSERT:  You have—you say a senator has tools at his or her disposal. Can you act—use those tools without violating your pledge of confidentiality as a member of the Intelligence Committee?

SEN. ROBERTS:  I’m not talking about speaking out about the specifics of the program. If you wanted, you could simply introduce an amendment during whatever we’re considering and saying, “Let’s de-authorize the program.” Or you can say, “I oppose the program and I want another briefing” and make those points in those sessions. That was not done. As a matter of fact, just to be very frank, my recollection is that virtually everybody that received those briefings was comfortable with it, I’m going to say thought it was legal, and that actually knew that this was a very crucial, crucial tool of intelligence that we have to have. It is a military capability to stop an attack on the country, I can’t think of anything more important.

MR. RUSSERT:  Congresswoman Harman, you were also briefed. Were you comfortable with the plan when you were informed of it?

REP. JANE HARMAN, (D-Calif.):  My briefings started in 2003 and have been in existence for about a year and a half, and I didn’t join this group until I was ranking member on Intelligence. The briefings were about the operational details of the program. I support the program, I’ve never flinched from that. However, the briefings were not about the legal underpinnings of the program, nor were they about the appropriateness of the Gang of Eight process. I talked to absolutely no one, because I would have violated three different federal criminal statutes had I talked to anybody.

MR. RUSSERT:  When you say “Gang of Eight,” you mean the four leaders of Congress—the majority leader, minority leader, the speaker, and Democratic leader in the House—and then the four ranking members of the Intelligence Committee...

REP. HARMAN:  That’s right.

MR. RUSSERT:  ...two in the Senate and House?

REP. HARMAN:  That’s exactly right. And I became a part of this group when I became ranking member in January of 2003. At any rate, I couldn’t talk to anyone about this program, and did not until the president disclosed its existence. It’s not the leak to The New York Times that triggered things—and by the way, I deplore that leak—but the day after that, President Bush disclosed the fact that the program existed, at which point I consulted constitutional experts, the former general counsel of the CIA, some of the excellent staff on the House Intelligence Committee, and then I learned, although I’m a trained lawyer, about some of the serious legal issues that I have been raising ever since. I still support the program, but it needs to be on a sounder legal footing, and I think the Gang of Eight process violates the National Security Act of 1947, which requires that, unless it’s a covert action program—Congress, that means the two Intelligence Committees—have to be fully and completely briefed.

MR. RUSSERT:  Vice President Cheney gave an interview in which he said this, “The program has operated for four years. Congress has been informed, a few members of Congress, informed throughout that period of time, and everything was fine until there was publicity in The New York Times. And at that point now, we’ve had some members head for the hills, so to speak; forget, perhaps, that they were at the briefings and fully informed of the program.” Is the vice president correct that Democrats went along with this program, and then when it became public, began to raise reservations?

REP. HARMAN:  Well, there was no way to raise any reservations before that. Jay Rockefeller’s letter is a, you know, is a private cry. If he had shared that letter publicly, I think he would have been in violation of the Espionage Act, the disclosure of classified information regarding cryptology and the unauthorized removal and retention of classified documents. So he could not talk about it. And again, this Gang of Eight process is only under law for the revelation of covert action programs. This is not a covert action program, this is a very valuable foreign collection program, and I’m—I think it is tragic that a lot of our capability is now across the pages of the newspapers.

MR. RUSSERT:  Congressman Hoekstra, in the briefings you received, did some members express reservations?

REP. PETER HOEKSTRA, (R-Mich.):  I’ve been briefed over the last 16 months since I’ve been chairman of the Intelligence Committee. As Jane says, I walked out of those meetings believing that, on a bipartisan basis, we thought that this was an essential program, we recognized that it was very, very focused in its scope.

MR. RUSSERT:  Congressman Hoekstra, in the briefings you received, did some members express reservations?

REP. HOEKSTRA:  I’ve been briefed over the last 16 months since I’ve been chairman of the intelligence committee. As Jane says, I walked out of those meetings believing that on a bipartisan basis, we thought that this was an essential program, we recognized that it was very, very focused in its scope, we walked out of there believing it was legal, and we walked out of there believing it was making an impact, it was keeping America’s families, it was keeping America’s communities safer, and we needed to continue this program. As some have mentioned, the problem now is the program is really of questionable value. It’s been across the media for the last 50 days. Does anyone really believe that after 50 days of having this program on the front page of our newspapers, across talked shows across America, that al-Qaeda has not changed the way that it communicates?

MR. RUSSERT:  Did anyone in the congressional branch say is this constitutional?  Should we be doing this?  What about the Foreign Intelligence Surveillance Act?  What authority does the president have to do this?

REP. HOEKSTRA:  Not in the briefings that I was in, and I’ll say that if members of Congress that were briefed—and you had the leadership in there, of the intelligence committee and of the House and the Senate—if they believed the president was violating the law, it was their responsibility to use every tool possible to get the president to stop it. That’s one of the primary—that’s one of our primary responsibilities, to make sure that the executive branch is following the law. We have lots of tools. I meet with the speaker every week to go through intelligence issues. If I came out of that briefing and believed that the president was violating the law, I would have gone to the speaker and say, “Mr. Speaker, the president’s violating the law, you and I need to go see the president and talk to him and get this issue resolved and do it now.”

MR. RUSSERT:  Let me ask the Democrats.

Senator Daschle, did you have an obligation after those meetings to go see the president and say, “Mr. President, you can’t do this.”

SEN. DASCHLE:  Well, Tim, I think Jane is right. We have had a good deal of analysis done on what you can and cannot talk about, and I think the president’s making a false choice here, and we’re hearing again the argument this morning that somehow we—we either are for hating the terrorists or protecting our values. We both—we all support going after the terrorists. We support the wiretapping program. We support doing everything we can to ensure we’ve got the best information we can get. But we also support respecting the rule of law. That’s what this is about, respecting the rule of law, and it’s worked. This law has worked since 1978. We haven’t had a problem before. You’ve got two chief justices of the Foreign Surveillance Act court, which have now suspended this law because of concern for what the administration has done. So what good is a law if the judges themselves are suspending it?  We’ve got a problem here. We say let’s—let’s abide by the law, respect the rule of law, respect our values, respect privacy, and let’s go after the terrorists aggressively.

MR. RUSSERT:  But were the Democrats so caught up in post-September 11, 2001, that they decided not to go to the president and say, “I think you’re violating the Constitution?”

SEN. DASCHLE:  Well, as I said, a number of Democrats expressed concern about the way this was being implemented, expressed concerns about whether or not this was falling within the context...

MR. RUSSERT:  To whom?

SEN. DASCHLE:  ...of the rule of law. To the administration. To officials within the administration.

MR. RUSSERT:  Congressman Harman, do you regret not having raised more reservations?

REP. HARMAN:  Well, I wish I’d been a lot smarter in those briefings about the legal underpinnings of the program. That was not discussed in the briefings. The briefings were about the operational details of the program and only in the last briefing because I requested it ahead—this was after the president had disclosed the existence of the program—did we spend an hour on the process, which was a very valuable discussion. The vice president and others were there. But remember, we go into those briefings alone, we have no ability to consult staff, we have no ability to consult constitutional experts or legal experts on the history of FISA. Since the program has been disclosed, I—and I think all of us, at least I have become a lot smarter about all that, and now that I have read the legislative history of FISA, which was enacted in 1978 on a bipartisan basis to cure the abuses of the Nixon era that had preceded it, I understand that it is the exclusive way that we can eavesdrop on Americans in America.

Let’s—let’s understand that our Constitution really is the issue here. The Fourth Amendment requires probable cause to listen and seize property of Americans. Every one of us wants to catch al-Qaeda and its affiliates. All of us want the president to have the tools. I just voted again for the Patriot Act. I believe we need modern tools. And, oh, by the way, FISA was modernized eight times in the Patriot Act after 2001. It is not a quaint little old thing that doesn’t work here, it can work here, and I think the entire program should fit under FISA as currently drafted. We don’t even need to amend FISA.

MR. RUSSERT:  Let’s talk about that. It’s the Foreign Intelligence Surveillance Act, and this was passed in 1978, both houses of Congress, signed by President Carter. Here’s part of that legislation, Section 1809 (a):  “A person is guilty of an offense if he intentionally engages in electronic surveillance, except as authorized by statute.”

The president, in his news conference in January, seemed to suggest that FISA, in his words, was an old law. Let’s listen to the president.

(Videotape January 26, 2006, Press Conference)

PRES. BUSH:  The FISA law was written in 1978. We’re having this discussion in 2006.

I said, “Look, is it possible to conduct this program under the old law,” and people said “It doesn’t work in order to be able to do the job we expect us to do.”

(End videotape)

MR. RUSSERT:  Senator Roberts, it seems as though the president is saying, “This is a law that’s on the books from 1978”...

SEN. ROBERTS:  Mm-hmm.

MR. RUSSERT:  ...”but it’s an old law, and my program doesn’t work under that law, so I’m just going to set it aside.” What is the authorization for the president to undertake this program, and did he violate a statute...

SEN. ROBERTS:  No.

MR. RUSSERT:  ...called FISA?

SEN. ROBERTS:  No. The president has the constitutional authority. It rises above any law passed by the Congress. President Roosevelt did that during World War II. Every president has done that under the Constitution, saying that the president has the primary duty to protect our national security.

I have just visited the NSA. I have gone out and visited with the good people who are working very hard with this capability, and I must tell you that the biggest problem with FISA, which I disagree with my good friend Jane, I think the FISA law is a pretty good law for what it does. But now it doesn’t really match up with the threat we have in terms of terrorism, and secondly it doesn’t match up with hot pursuit or agility or to stop the terrorist act. Now...

MR. RUSSERT:  Stop there. Then why not change the law

REP. HARMAN:  Right.

MR. RUSSERT:  ...rather than just ignore it?

SEN. ROBERTS:  There was a lull about a year and a half ago, maybe two years ago, where that was considered. And everybody took a look at it and said, “Now wait a minute. If you change the FISA law and you have say a streamlined FISA law on top of FISA, you”—you’ve got to understand that these FISA cases are this thick and on emergency cases they are stacked up and on nonemergency cases even higher, and the time delay, we need action by minutes and hours to stop a terrorist attack. We’re talking about days—days delay. So, consequently, you could do an amendment to FISA to say this particular program does fit under FISA, but it would be a streamlined FISA.

Now, understand that’s only from a call from a foreign terrorist cell, an al-Qaeda terrorist cell to the United States; not a phone call in the United States to another person in the United States. Now, after you do all that, and you got to figure out what committee you go to and what jurisdiction you go to, and how many details you’re going to reveal, and the operational details that you reveal—and I agree with Pete. We’re to the point now where we’re about to lose the capability. That’s the big issue here in terms of going deaf. You’re right back where you started from with a president’s authority that he has under the Constitution, and you have that—the very same thing that you have now.

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 11th” 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?

REP. HOEKSTRA:  The president told the truth in terms of if we are going to domestic to domestic, there is a court order. Obviously at that time, we in Congress knew, or at least the eight of us knew that if he was taking—if we were listening to al-Qaeda on one end calling in to the United States, that there was not a court order, there was not a warrant.

MR. RUSSERT:  The president never said domestic to domestic. He said, “A wiretap requires a court order. When you’re talking—when you’re tracking down—talking about chasing down the terrorists, we’re talking about getting a court order before we do so.” So he’s suggesting to the American people that he is bound, as president, to get a court order. He was not saying, “I have inherent congress—constitutional authority to do what I want to do.”

REP. HOEKSTRA:  I think that’s accurate. The president was focused on making sure that when al-Qaeda’s calling into the United States, we were listening.

REP. HARMAN:  I think we...

MR. RUSSERT:  You think the president misled the American people?

REP. HARMAN:  ...I—I think we should be listening. I support this capability, but I also think Congress should be listening. I think that this entire program now should be briefed to the two intelligence committees, as is required by the National Security Act of 1947. There were some—some briefings this...

SEN. ROBERTS:  Not right.

REP. HARMAN:  Let me just—can I finish my thought, Pat?

SEN. ROBERTS:  Certainly.

REP. HARMAN:  Briefings earlier this week, which were extremely helpful, of all of the members of our committees, all of whom are very responsible. We’re only 36 members total that we’re talking about, and those members should decide whether this program fits within the law, and if it does, which I think it does, we should all declare victory. If it does not, then we should be changing the law or changing the program.

MR. RUSSERT:  The vice president said Congress would leak like a sieve. You couldn’t possibly brief that many people.

REP. HARMAN:  I—I find that ironic, Tim, since one, these leaks came from the administration, nobody in Congress knew. Two, the White House declassifies the information it chooses to declassify, and there’s material in the newspapers that the vice president may have authorized his then-chief of staff Scooter Libby to talk about classified portions of the national intelligence program.

MR. RUSSERT:  Senator Daschle, knowing what we know now, should the president stop this program?

SEN. DASCHLE:  No, absolutely not. I think it’s a very valuable program. But again, as I said, it’s a false choice, Tim, to say that you can either stop the program or protect the rules of law. I think we’ve got to respect the rule of law, and that’s what this is about. The law was put in place, it’s worked effectively, we know now it can be just as applicable. If they want to see some changes to it, let’s find changes. I think there ought to be an investigation by the appropriate committees of Congress and look into NSA to see how we might it effectively. Let’s not just depend on the administration to give us their guidance, let’s look at it ourselves. Let’s do that. And I think if we did that, we can make this law work, and we can do both:  protect the rule of law and protect the citizens of the United States.

MR. RUSSERT:  Do you think the program should be stopped?

REP. HARMAN:  No. I think the program should go on, I think the program should fully comply with FISA.

MR. RUSSERT:  Senator Roberts, let me ask you a very serious question. Do you believe that the Constitution gives the president of the United States the authority to do anything he believes is necessary to protect the country?

SEN. ROBERTS:  Yes, but I wouldn’t say anything he believes. I think you go at it very, very carefully, and that’s been done by every president that I know of. And it’s very important to point out, not only for this president but for the next one, because we have a different kind of war, a different kind of threat, a different kind of technology. And again, the FISA court, and I don’t mean to pick a fuss with my good friend Jane, who I agree with 90 percent of the time. But it is an outdated law for this threat and the time equation that we have to have to stop terrorists. Not only for President Bush, past presidents have done this, future presidents will have to have that authority. The 1947 National Security Act said, yes, you will inform members of Congress. But Congress itself then went in and passed a law and said, if it is sensitive information and would reveal sources and methods, then you have to limit this, and it has been limited to the leadership, who better, and the four people on the intelligence committee. We were briefed. Now, I don’t know, I don’t know how else I can say it.

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.

MR. RUSSERT:  Let me turn to an article written by Paul Pillar, a CIA analyst for 28 years, who’s now written a piece on foreign affairs. Four people at the table, all of whom voted in favor of the war in Iraq, and this is what he said:  “The most serious problem with U.S. intelligence today is that its relationship with the policymaking process is broken and badly needs repair. In wake of then Iraq war, it’s become clear that official intelligence analysis was not relied on in making even the most significant national security decisions, that intelligence was misused publicly to justify decisions already made, that damaging ill will developed between policymakers and intelligence officers, and that the intelligence community’s own work was politicized. As a national intelligence officer responsible for the Middle East from 2000 to 2005, I witnessed all of these disturbing development. If the entire body of official intelligence analysis on Iraq had a policy implication, it was to avoid war or, if war was going to be launched, to prepare for a messy aftermath. What is most remarkable about prewar U.S. intelligence on Iraq is not that it got things wrong and thereby misled policymakers, it is that it played so small a role in one of the most important U.S. policy decisions in recent decades.”

And, Senator Daschle, he says that he was not contacted by the administration for an assessment of post-war Iraq for a year after the war began. Based on everything you have learned over the last several years, do you regret authorizing the president—giving the president authority to go into Iraq?

SEN. DASCHLE:  Well, Tim, you can’t turn back the clock, and I’m—I’m not going to re-visit that vote. I will say I regret very much the way this was all handled. The tremendous—the shocking revelations now that Mr. Pillar has provided gives us yet another reason why we ought to be investigating the use of intelligence. You know, we were promised over two years ago that we would have an investigation on whether or not the intelligence was abused. Now you’ve got one of the most prominent CIA analysts in the country who has said, “Yes, it was abused, and Congress and others made very serious decisions based on faulty information.” We ought to have a far more aggressive oversight than what we’ve seen today.

MR. RUSSERT:  Congressman Hoekstra, you agree with that?

SEN. ROBERTS:  Wait a minute. Could I answer this, Tim?  Because it’s under my jurisdiction. OK?

REP. HOEKSTRA:  It’s under ours, too.

REP. HARMAN:  Ours, too.

MR. RUSSERT:  Well, go ahead, yeah.

SEN. ROBERTS:  We did—we did the WMD study.

MR. RUSSERT:  Yeah, you promised on this program...

SEN. ROBERTS:  Our inquiry. Yes, I did. Now—and by the way, there are five pieces to that, and by the way, it would be—we have 13 people working on it, and three will be ready next month. And it’s something to say that phase two is now completed, and then have a lot of criticism of it, by the same people who keep moving the goal post and adding in more information.

We are now going to, on that one particular piece that would refer to this gentleman, 40,000--even more than that—intelligence papers to match up what people said, and they looked at the intelligence and say, “Does that make sense?” So phase two will be completed, and rest assure there’s nobody in Washington that wants that completed more than I do.

Now we interviewed over 250 analysts during the WMD—the WMD inquiry, including this gentleman. Not one, except him now, post after all this is done, said that they were pressured in any way. And that was backed up by the WMD commission. Now, there was some comment about repeated questioning, but most analysts will say there better be some repeated questioning, but there was no—no political pressure, no manipulation. We asked over 250 analysts about that.

Now, the intelligence was wrong. We had a world-wide intelligence failure. That’s why the Congress stepped up and passed the intelligence reform bill, that’s why the WMD commission recommended 95 changes, and the administration has made 94. But this gentleman was interviewed, and when he was interviewed that kind of rhetoric was not in the interview.

MR. RUSSERT:  He says that the essence of the intelligence was Iraq was not going—worth going to war over.

REP. HOEKSTRA:  Right. You said should the committees be doing aggressive oversight?  And the answer is absolutely yes. Pat is doing it on the post—or the prewar intelligence, Jane and I, we do a lot of things together. We don’t agree on everything, but there—you know, we agreed on a number of the priorities for the committee this year. We—we have a lot of blood, sweat and tears put into the intelligence reform bill. We want to make sure that the intelligence reform is creating the kind of intelligence community that we want created:  agile, thorough, global. We both have concerns that it’s not moving fast enough.

REP. HARMAN:  Yes.

REP. HOEKSTRA:  I have talked—or my staff contacted Mr. Pillar on Friday. Interesting allegations. I’ve asked to meet with him. I’m not sure we’re going to open an investigation on one new story. We’re going to talk with Pat and see the information that he’s got. But if this guy’s coming out now—the question is where was he before we went to war?

MR. RUSSERT:  We only have 15 seconds.

REP. HARMAN:  He was trying to get everyone’s attention. Intelligence was ignored. Yes everyone agreed there was WMD in Iraq, but the—the—the weight of the recommendation was Saddam was contained and he wasn’t going to use it. And that’s the part that the administration never let us hear about.

MR. RUSSERT:  Do you regret your vote for the war?

REP. HARMAN:  I—I regret that our intelligence wasn’t considered in full, and that those of us on the intelligence committees didn’t have access to a fuller picture. I think that that would have staved off the actual military action had we understood it.

MR. RUSSERT:  To be continued.

Hoekstra, Harman, Daschle, and Roberts:  Thank you. We’ll be right back.

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