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Domestic Spying Controversy Hits Senate; Ben Bernanke Sworn In

Aired February 06, 2006 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

DARYN KAGAN, CNN ANCHOR: Alberto Gonzales will be defending the NSA domestic spying program before the Senate Judiciary Committee.
And, meanwhile, new Federal Reserve Chairman Ben Bernanke preparing to be sworn in by President Bush.

We'll have much more for you on both of these stories. First, let's check on what's happening right "Now in the News."

Jury selection is getting underway for Zacarias Moussaoui. The 37-year-old Frenchman has already admitted to being part of al Qaeda's plans to plow airliners into U.S. landmarks. But he says he didn't know about the specific 9/11 plans. The trail will determine whether Moussaoui is sentenced to death or life in prison.

Also this hour on Capitol Hill, the Bush administration is releasing its budget. The $2.7 trillion spending plan seeks big increases for homeland security and the military. It also seeks to trim other programs in an election year bid to rein in the soaring federal deficit.

Muslim outrage continues to erupt across the Arab world. Today, tens of thousands of protesters launched new demonstrations from Indonesia to Afghanistan. Four people have reportedly been killed in clashes with police in Afghanistan. Muslims are enraged by newspaper cartoons that they say mock Islam's Prophet Mohammad.

In Southern California, strong winds are fueling a rapidly growing fire in Cleveland National Forest. That's in Orange County. Fire crews say 30 miles an hour winds are pushing the flames toward the Anaheim Hills area. So far, the fire has been contained but the winds and the rugged forest terrain are stoking concern.

This hour in Atlanta, Coretta Scott King lies in honor at the historic Ebenezer Baptist Church. That's where her late husband, Martin Luther King, Jr., was a pastor, along with his father. Mrs. King's funeral will be held tomorrow and President Bush and the first lady are among those who will attend.

And good morning to you on this Monday morning. I'm Daryn Kagan at CNN Center in Atlanta.

We're going to begin with news on your security. A debate on Capitol Hill about protecting America and protecting the civil liberties of all Americans. As we look at a live picture of The Capitol, a Senate Judiciary Committee hearing is underway. There you see Attorney General Alberto Gonzales. The panel is questioning the legality of the National Security Agency's domestic spying program. And Mr. Gonzales is defending the Bush administration.

Our national security correspondent David Ensor and congressional correspondent Ed Henry are covering the hearing. And here's a reminder that you can watch the domestic spying hearing on our Web site and we'll get to that in a moment.

But first, David, let's start with you.

DAVID ENSOR, CNN CORRESPONDENT: Well, Daryn, this has gotten off to a contentious start already with Democrats losing on a party line vote a request to have Alberto Gonzales sworn in so that his testimony would be under oath. That showed clearly that there's going to be a lot of sharp questioning. And the ranking minority member, Senator Leahy, has already said to the attorney general, in America, in our America, Mr. Attorney General, not even the president is above the law.

So we're going to see some sharp exchanges today over just how legal is this domestic surveillance program. There will, obviously, be questions about what exactly it covers, how many Americans may have had their overseas calls surveilled. I doubt that those questions will get answers, though.

Daryn.

KAGAN: What about questions about politics? For that let's go to Ed Henry who's watching this.

Ed.

ED HENRY, CNN CORRESPONDENT: Well, certainly a titanic legal and constitutional battle, as David knows full well. But also a big political battle as well. And, in fact, as David noted, it immediately got off to a partisan start over whether or not the attorney general should be sworn in and brought in under oath. The chairman, Senator Arlen Specter, making clear a statute is already on the book. He has to tell the truth. And he just said himself, the attorney general, whether or not he's sworn in, he is going to tell the truth.

But there -- also the Democrats have this DVD that they've been handing out and there was a fight as well about this in the last few minutes. They want to show some video of the attorney general at his confirmation hearing last year in which he was asked about whether or not the president would basically authorize any action in contravention of criminal statutes. The attorney general said no. And then under direct questioning from Senator Russ Feingold, on this very committee, he said if that changed, the attorney general would come immediately to Congress and tell them.

So you're going to hear them -- they wanted to show video of that. Instead, they're going to have to readout the transcript. So there are going to be sharp words on both sides. And I think it's clear the Democrats are going to be on the attack. But what the administration has to be much more worried about is what the Republican chairman, Arlen Specter, says. He basically said yesterday, his early read is that this may have been illegal. They have to pay close attention to him.

Daryn.

KAGAN: All right, Ed, thank you. David, as well.

Let's go watch live now President Bush at the swearing in for Ben Bernanke as the new chairman of the Federal Reserve, replacing Alan Greenspan. Let's listen to the president.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: It's good to be with Anna, Ben's wife, Alyssa and Joel, his sister Sharon and the other members of the Bernanke family. Welcome. Thanks for being here. You probably didn't think your brother was going to amount to much.

I'm honored members of my cabinet are here. Secretary Carlos Gutierrez, Deputy Secretary Bob Kimmit. Members of Congress. Congressman Oxley, Congressman Franks. Thank you all for coming. It's awfully generous of you both to be here.

I appreciate Roger Ferguson, the vice chairman, other members of the board of governors. Thank you for being here as well. Former Chairman Paul Volcker. Thanks for coming today sir. I've got something to say about the other former chairman, who's here, in a minute.

Since its creation in 1913, the Federal Reserve has helped bring stability and growth to our nation's economy. Around the world the Fed is a symbol of integrity and reliability. Its decisions set our nation's monetary policy, ensure a sound banking system and help contain the risks that can arise in our financial markets.

The Fed's action touch the lives of all Americans and the chairman of the Federal Reserve must be a leader of unquestionable credentials, sound judgment, and impeccable character. Ben Bernanke meets those high standards and he will be an outstanding chairman of the Federal Reserve.

As chairman, Ben follows in the footsteps of one of America's most respected public servants. Alan Greenspan is perhaps the only central banker ever to achieve what one publication called "rock star status." For almost two decades, Chairman Greenspan's prudence and wise policies have guided this nation through major economic challenges, have kept inflation in check, and contributed to phenomenal economic growth and a better life for all our citizens.

Recently he said, I have only just realized what I have been -- that I have been on 24-hour call . . .

KAGAN: Well, we're going to go ahead and keep listening in a bit to President Bush. Meanwhile, Attorney General Alberto Gonzales getting into his opening statements before the Senate Judiciary Committee. Let's go ahead and listen in.

ALBERTO GONZALES, U.S. ATTORNEY GENERAL: To protect the privacy of Americans still further. The NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons.

Fourth, this program is administered by career professionals at NSA. Expert intelligence analysts and their senior supervisors with access to the best available information, they make the decisions to initiate surveillance. The operation of the program is reviewed by NSA lawyers and rigorous oversight is provided by the NSA inspector general. I have been personally assured that no other foreign intelligence program in the history of NSA has received a more thorough review.

Fifth, the program expires by its own terms approximately every 45 days. The program may be reauthorized but only on the recommendation of intelligence professionals. And there must be a determination that al Qaeda continues to pose a continuing threat to America based on the latest intelligence.

Finally, the bipartisan leadership of the House and Senate Intelligence Committees has known about this program for years. The bipartisan leadership of both the House and Senate has also been informed. During the course of these briefings, no members of Congress asked that the program be discontinued.

Mr. Chairman, the terrorists surveillance program is lawful in all respects. As we have thoroughly explained in our written analysis, the president is acting with authority provided both by the Constitution and by statute.

First and foremost, the president is consistent with our Constitution. Under Article II, the president has the duty and the authority to protect America from attack. Article II also makes the president, in the words of Supreme Court, "the sole organ of government in the field of international relations." These inherent authorities vested in the president by the Constitution include the power to spy on enemies, like al Qaeda, without prior approval from other branches of government.

The courts have uniformly upheld this principle in case after case. Fifty-five years ago the Supreme Court explained that the president's inherent constitutional authorities expressly include "the authority to use secretive means to collect intelligence necessary for the conduct of foreign affairs and military campaigns." More recently, in 2002, the FISA court of review explained that "all the other courts to have decided the issue have held that the president did have inherent authority to conduct warrantless searches to obtain intelligence information." The court went on to add, "we take for granted that the president does have that authority. And assuming that that is so, FISA could not encroach on the president's constitutional powers."

Now, it is significant this statement, stressing the constitutional limits of the Foreign Intelligence Surveillance Act, or FISA, came from the very appellate court that Congress established to review the decisions of the FISA court. Nor is this just the view of the courts.

Presidents throughout our history have authorized the warrantless surveillance of the enemy during wartime and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush. General Washington, for example, instructed his army to intercept letters between British operatives, copy them, and then allow those communications to go on their way. President Lincoln used a warrantless wiretapping of telegraph messages during the Civil War to discern the movements and intentions of the opposing troops.

President Wilson in World War I authorized the military to intercept each and every cable, telephone and telegraph communication going into or out of the United States. During World War II, President Roosevelt instructed the government to use listening devices to learn the plans of spies in the United States. He also gave the military the authority to review, without warrant, all telecommunications "passing between the United States and any foreign country." The far more focused terrorists surveillance program fully satisfies the reasonable requirement of the fourth amendment.

Now, some argue that the passage of FISA diminished the president's inherent authority to intercept any communications, even in a time of conflict. Others disagree, contesting whether and to what degree the legislative branch may extinguish core constitutional authorities granted to the executive branch.

Mr. Chairman, I think that we can all agree that both of the elected branches have important roles to play during a time of war. Even if we assume that the terrorists surveillance program qualifies as electronic surveillance under FISA, it complies fully with the law. This is especially so in light of the principle that statutes should be read to avoid serious constitutional questions. A principle that has no more important application than during wartime.

By its plain terms, FISA prohibits the government from engaging in electronic surveillance "except as authorized by statute." Those words, "except as authorized by statute," are no mire incident of drafting. Instead, they constitute a far sighted safety valve.

The Congress that passed FISA in 1978 included those words so that future congresses could address unforeseen challenges. The 1978 Congress afforded future lawmakers the ability to modify or eliminate the need for a FISA application without having to amendment or repeal FISA. Congress provided the safety valve because it knew that the only thing certain about foreign threats is that they change in unpredictable ways.

Mr. Chairman, the resolution authorizing the use of military force is exactly the sort of later statutory authorization contemplated by FISA safety valve. Just as the 1978 Congress anticipated, a new Congress in 2001 found itself facing a radically new reality. In that new environment, Congress did two critical things when it passed the forced resolution.

First, Congress recognized the president's inherent constitutional authority to combat al Qaeda. These inherent authorities, as I have explained, include the right to conduct surveillance of foreign enemies operating inside this country. Second, Congress confirmed and supplemented the president's inherent authority by authorizing him "to use all necessary and appropriate force against al Qaeda." This is a very broadly worded authorization. It is also one that must permit electronic surveillance of those associated with al Qaeda. Our enemies operate secretly and they seek to attack us from within. In this new kind of war, it is both necessary and appropriate for us to take all possible steps to locate our enemy and know what they're plotting before they strike.

Now we all agree that it's necessary and appropriate use of force to fire bullets and missiles at al Qaeda strong holds. Given this common ground, how can anyone conclude that it is not necessary and appropriate to intercept al Qaeda phone calls. The term "necessary and appropriate force" must allow the president to spy on our enemies, not just shoot at them blindly, hoping we might hit the right target.

In fact, other presidents have used statutes like the force resolution as a basis for authorizing far broader intelligence surveillance programs. President Wilson in World War I cited not just his inherent authority as commander in chief to intercept all telecommunications coming into and out of this country, he also relied on a congressional resolution authorizing the use of force against Germany that parallels a force resolution against al Qaeda.

A few members of Congress have suggested that they personally did not intend the force resolution to authorize the electronic surveillance of the enemy, al Qaeda. But we are a nation governed by written laws, not the unwritten intentions of individuals. What matters is a plain meaning of the statute passed by Congress and signed by the president. And in this case, those plain words could not be clearer.

The words contained in the force resolution do not limit the president to employing certain tactics against al Qaeda. Instead, they authorize the use of all necessary and appropriate force. Nor does the force resolution require the president to fight al Qaeda only in foreign countries. The preamble to the force resolution acknowledges the continuing threat "at home and abroad." Congress passed the force resolution in response to a threat that emerged from within our own borders. Plainly, Congress expected the president to address that threat and to do so with all necessary and appropriate force.

Importantly, the Supreme Court has already interpreted the force resolution in the Hamdi case. There the question was whether the president had the authority to detain an American citizen as an enemy combatant. And to do so despite a specific statute that said that no American citizen could be detained except as provided by Congress. A majority of the justices in Hamdi concluded that the broad language of the force resolution gave the president the authority to employ the traditional incidents of waging war.

Justice O'Connor explained that these traditional powers include the right to detain enemy combatants and to do so even if they happen to be American citizens. If the detention of an American citizen who fought with al Qaeda is authorized by the force resolution, as an incident of waging war, how can it be that merely listening to al Qaeda phone calls into and out of the country in order to disrupt their plots is not?

Now, some have asked that the president could have obtained the same intelligence using traditional FISA processes? Let me respond by assuring you that we make robust use of FISA in our war efforts. We constantly search for ways to use FISA more effectively. In this debate, however, I have been concerned that some who have asked, why not FISA, do not understand how that statute really works.

To be sure FISA allows the government to begin electronic surveillance without a court order, for up to 72 hours in emergency situations or circumstances. But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance. This requirement can be cumbersome and burdensome.

Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the requests to make sure it meets all of the requirements of the statute. And then lawyers at the Justice Department must also review the requests and reach the same judgment or insist on additional information before processing the emergency application. Finally, I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.

But even this is not the end of the story. Each emergency authorization must be followed by a detailed formal application to the FISA court within three days. The government must prepare legal documents laying out all the relevant facts and law and obtain the approval of a cabinet level officer, as well as a certification from a senior official with mass security responsibility, such as the director of the FBI. Finally, a judge must review, consider, and approve the application.

All of these steps take time. Al Qaeda, however, does not wait. While FISA is appropriate for general foreign intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble, early warning system we need against al Qaeda. Just as we can't demand that our soldiers bring lawyers on to the battlefield, let alone get the permission of the attorney general or a court before taking action, we can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in realtime.

Mr. Chairman, the terrorist surveillance program is necessary, it is lawful, and it respects the civil liberties we all cherish. It is well within the mainstream of what courts and prior presidents have authorized. It is subject to careful constraints and congressional leaders have been briefed on the details of its operation. To end the program now would be to afford our enemy dangerous and potentially deadly new room for operation within our own borders.

I have highlighted the legal authority for the terrorist surveillance program and I look forward to our discussion and know that you appreciate the remained serious constraints of what I can say about operational details. Our enemy is listening and I cannot help but wonder if they aren't shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.

Thank you, Mr. Chairman.

SEN. ARLEN SPECTER, (R) CHAIRMAN, JUDICIARY COMMITTEE: Thank you very much, Attorney General Gonzales.

Before proceeding to the 10-minute rounds for each of the senators, let me request that you make your answers as brief as possible. You're an experienced witness and we will try to make our questions as pointed, as brief, as each senator sees it appropriate.

UNIDENTIFIED MALE: Mr. Chairman, could I also ask that we have, for the record, the statement that attorney general -- well, obviously, the statement that he just gave now, but the statement that he submitted to the committee under our rules a couple days ago as part of the record?

SPECTER: Is there a difference between the two statements, Mr. Attorney General?

GONZALES: Sir, there is a difference between the written statement and the oral statement. Yes, sir.

SPECTER: The same?

GONZALES: There is a difference, sir. They're not the same.

SPECTER: Well, both will be made a part of the record.

UNIDENTIFIED MALE: Thank you.

SPECTER: All right, now for the 10-minute rounds.

Mr. Attorney General, starting with the FISA court. Well respected, maintained secrecy, experienced in the field, and I pose this question to you in my letter, why not take your entire program to the FISA court within the broad parameters of what is reasonable and constitutional and ask the FISA court to approve it or disapprove it?

GONZALES: Senator, I totally agree with you that the FISA court should be commended for its great service. They are working on weekends. They're working at nights.

SPECTER: Now on to my question.

GONZALES: They -- assisting us in the war on terror. In terms of why not go to the FISA court. Once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question comes for the commander in chief, which of the tools is appropriate given a particular circumstance. And we studied very carefully the requirements of the Constitution under the Fourth Amendment. We studied very carefully what FISA provides for. As said in my statement, we believe that FISA does anticipate that another statute could permit electronic surveillance in a way that's . . .

SPECTER: OK. You think you're right. But there are a lot of people who think you're wrong. As a matter of public confidence, why not take it to the FISA court? What do you have to lose if you're right?

GONZALES: What I can say, Senator, is that we are continually looking at ways that we can work with the FISA court in being more efficient and more effective in fighting the war on terror. Obviously, we would consider, and are always considering, methods of fighting the war effectively against al Qaeda.

SPECTER: Well speaking for myself, I would urge the president to take this matter to the FISA court. They're experts. They'll maintain the secrecy. And let's see what they have to say.

Mr. Attorney General, did Judge Robertson of the FISA court resign in protest because of this program?

KAGAN: We've been listening into the Senate Judiciary Committee. Arlen Specter, a Republican there, challenging the Attorney General Alberto Gonzales, as Mr. Gonzales tries to defend President Bush's domestic spying program, the NSA, which the attorney general says is necessary to protect the country.

We'll continue to listen in and bring you more just ahead after this break.

(COMMERCIAL BREAK)

KAGAN: We're coming up on the half hour. I'm Daryn Kagan. Let's take a look at what's happening "Now in the News."

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