• This is a partial transcript from "The Journal Editorial Report," January 28, 2006, that was edited for clarity.

    PAUL GIGOT, HOST: The Bush administration mounted a vigorous defense this week of its warrant-less wiretapping program, hoping to bolster public support for a policy that many on the left are hoping to turn into a political liability.


    GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I have the authority, both from the constitution and the Congress, to undertake this vital program.

    The American people expect me to protect their lives and their civil liberties, and that's exactly what we're doing with this program. I'll continue to re-authorize this program for so long as our country faces a continuing threat from Al Qaeda and related groups.


    GIGOT: As a deputy assistant attorney general from 2001 to 2003, my guest this week was a chief architect of many of the Bush administration's post-September 11 policies, including the one currently at the center of the political storm.

    John Yoo joins me now from Berkeley, California.

    John, thanks for being here.


    GIGOT: The critics of the president's wiretapping program make a simple case. They say a 1978 law required court approval for these kinds of wire tapes. In this case, the president didn't go to that court to get approval, therefore, what he does is illegal.

    What's wrong with that argument?

    YOO: There are two different arguments that the administration is relying on.

    First, the most robust version of it is that the president is the commander in chief. And as the commander in chief, under the constitution, he has the responsibility and the duty to respond to an attack on the United States, which we saw on 9/11. We saw it in New York City.

    And that power has to include the ability to respond with force against al Qaeda and other threats to the United States, including those that will produce a direct attack like the kind we saw on 9/11.

    Now, that power to use force has ancillary powers, or related powers. One would be the power to detain enemy combatants, which the Supreme Court upheld two years ago.

    Another related power and, in some ways and maybe an even more important power, is to gain intelligence on the members of the enemy so you can use force in the best way possible. And presidents have traditionally, since at least Franklin Roosevelt on, have always used that authority to intercept the communications of members of the enemy, including intercepting...

    GIGOT: But why, in this case, couldn't he just have gone to the FISA Court and asked the court, "Here's the probable for an Al Qaeda member overseas. We want to listen in." Why could he have gone to the court?

    YOO: Well, I can't talk about the specifics of the program, what the program exactly requires because it's still classified. But I can say that the FISA statute isn't really suited to the challenge posed by Al Qaeda.

    The FISA statute was written, as you said, in 1978. It was designed to allow us to surveil Soviet spies working at the embassy in Washington or the U.N. headquarters, who were contacting Americans. And it was written for a time of rotary telephones, when there was no e-mail. And it was written for that kind of period.