This is a partial transcript from "Hannity & Colmes," December 16, 2005, that has been edited for clarity.
SEAN HANNITY, CO-HOST: Our top story tonight: "The New York Times" reported today that the Bush administration authorized the National Security Agency to eavesdrop on American citizens shortly after the attacks of September 11th. The NSA monitored phone calls — is what the claim is — and e-mails of hundreds and perhaps thousands of Americans inside the United States without obtaining warrants — is what the story says.
Now, administration officials say that the surveillance uncovered several terrorist plots, both here and abroad. Some people are up in arms today, claiming that the practice violates the Constitution.
Joining us now, two former deputy assistant attorneys general, Victoria Toensing and Andrew Fois is with us. Thank you both for being with us.
Victoria, it's interesting, when you read "The New York Times" today, you get one story. But it's interesting — and the headline, of course, is that the Bush administration did this, in and of itself, but in fact we know that Jay Rockefeller knew about it. We knew that national security members knew about it, that this was not done in a bubble. So the story is not accurate as is being portrayed, is it?
VICTORIA TOENSING, FORMER JUSTICE DEPARTMENT OFFICIAL: Well, certainly not, as it has been hyped, Sean, afterwards. Key in on the word "monitor," because that doesn't mean targeted. And that's what a whole lot of headlines and talking heads have been saying. It is absolutely false.
Let's focus on what we're talking about. We're talking about surveilling foreign powers or their agents. That's why we're only talking about international phone calls, foreign powers or their agents.
Now, we don't know what protections are in place. Nobody who's been criticizing the administration knows what protections are in place. And I bet you most of them don't even know how the scenario could occur.
I happen to, because I was chief counsel for the Senate Intelligence Committee, and I used to have to look into these things.
But picture this: What if Usama bin Laden is making a phone call to the United States? Do people really think that the government should then say, "Oh, my goodness, we're now monitoring a U.S. citizen and we should hang up"? That's what this is all about.
HANNITY: You know, Victoria, it seems to me that the left wants it both ways. They want to be able to blame Bush any time anything happens but, on the other hand, they're not allowing him to take what seem to be clearly, obvious, commonsensical-type steps to ensure that we monitor these people that we know are out there because we already know what their intentions are.
There's judicial oversight. We know that Jay Rockefeller was aware of this. We know that the Foreign Intelligence Security Act court was aware of this. What else is the president to do?
TOENSING: Well, Sean, we have a new paradigm now. In the past, the FBI and the CIA — well, mostly the FBI — was supposed to only investigate crimes that had taken place. The laws and the court opinions that were written to protect our rights when the government is investigating a crime that has taken place don't work for what we've now told the government we want it to do, and that is prevent the next attack. We have to find...
HANNITY: We have to.
TOENSING: ... new ways to do it and balance our individual rights at the same time. But we can't rely on the old laws.
HANNITY: Andrew, the same point, this was not done in a bubble. Senator Rockefeller of the Intelligence Committee was aware of it. As I pointed out, the Foreign Intelligence Security Act court was aware of it. There's no evidence that any law was violated in any kind. It seems like, once again, the anti-Bush "New York Times" wants to create a conspiracy where there is none. Do you have any problem with what you're reading?
ANDREW FOIS, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Well, Sean, yes, I have a big problem with it. I'm much more concerned about this than Victoria Toensing is, who I have a lot of respect for. And you're a great American, but I think you're misreading the "Times" article. Very few...
HANNITY: I read it fully, all seven pages.
FOIS: Well, then you know that Senator Rockefeller was one of just a couple of congressional officials who were briefed after the fact. They did not authorize it; they did not approve of it. And in fact, Senator Rockefeller, as soon as he was told about it, wrote a letter to the administration complaining about it and expressing concerns.
HANNITY: But putting that aside, what are we to do if — we're in a post-9/11 world. We have the enemies of America plotting, planning, scheming their next attack. Explain to me where there's any type of law broken here.
FOIS: We're supposed to do everything we can consistent with the law. We're supposed to strike...
HANNITY: What law was broken, though?
FOIS: Well, there's no law authorizing this, so what was broken was the Constitution that prohibits unreasonable searches and seizures.
ALAN COLMES, CO-HOST: Actually, by law, you need — as I understand it, Victoria and Andrew — you need a warrant from the Foreign Intelligence Surveillance court whenever you eavesdrop within the United States. And, Victoria, this is not just eavesdropping...
TOENSING: What if it's not in the United States, Alan?
COLMES: ... between foreign — this is eavesdropping between calls from the United States...
TOENSING: Alan, Alan?
COLMES: ... or to the United States from foreign countries. That's what's going on here.
TOENSING: No, no, no, no, no, no. OK, Alan? OK, now, let me just give — let's go back to my example. Usama bin Laden, we've got — we're monitoring all his calls. Wouldn't that be wonderful? And he calls somebody in the United States. Do you want us to hang up?
COLMES: You have the right to go to the Foreign Intelligence Surveillance Court.
TOENSING: Yes or no, Alan?
COLMES: If you were monitoring a call between the United States and a foreign country...
TOENSING: Alan, you've evidently...
COLMES: ... there is a process and a law in place that may have been broken. Why are you so cavalier about it?
TOENSING: Alan, you want to hear — well, because I understand how that works. It takes two to three months to get a Foreign Intelligence Surveillance Act wiretap. I've had to review them. They are three inches thick, most of the time. And if you've just got a phone call right now, you're listening to Usama bin Laden, he's calling the United States...
COLMES: Is there any evidence that that happened?
TOENSING: ... there's no way you can get it, Alan.
COLMES: Is there evidence that happened, that Usama bin Laden called?
Andrew, this is riding roughshod...
TOENSING: Anybody in Al Qaeda.
COLMES: ... over rights of the Fourth Amendment in the Constitution...
TOENSING: Alan, you want to ignore this?
COLMES: They want to ignore it on the right. And this, by the way, a conservative point of view would be get the government out of our lives. This is a privacy issue. This could be a violation of the Fourth Amendment.
FOIS: Of course.
TOENSING: Well, if you're an agent of a foreign power.
COLMES: Andrew, go ahead.
FOIS: Of course. And that's why Senator Specter called this unacceptable. That's why Senator McCain said there must be an immediate investigation. And what Victoria is forgetting is that, in order to know that Usama bin Laden is calling, you're going to have to have tapped the American citizens' phone in the United States to get that call.
HANNITY: Not at all.
TOENSING: No, you don't. No, you don't.
HANNITY: No, you don't.
FOIS: Yes, you do.
COLMES: Yes, you absolutely do.
TOENSING: No, please, stop, time out.
FOIS: That's what this is about. No, no, no time-out. This is about tapping Americans on some unspecified...
HANNITY: That's not true.
FOIS: ... suspicion by...
TOENSING: No, it's not. You've got...
FOIS: ... by a — that's what the article's about.
COLMES: That is clearly what the article says, Victoria.
TOENSING: Can I explain it, since I've done it?
FOIS: I've done it, too. I was acting attorney general. I signed and approved these myself, Victoria, when I was assistant attorney general.
TOENSING: Well, then you know full well...
FOIS: And it doesn't need to take...
TOENSING: And you know full well — can I finish?
FOIS: It doesn't need to take all that time.
COLMES: All right, Victoria, go ahead. Say what you want to say, Victoria. Hold on, Victoria, say what you want to say, and we'll let Andrew respond. Go ahead.
TOENSING: You know full well that NSA can target a telephone abroad. And in targeting that telephone abroad, they can pick up phone calls that are made to the United States, for goodness' sake.
FOIS: But that's not what this is about.
COLMES: All right, Andrew, go ahead.
TOENSING: You don't know that. You have no idea about that.
FOIS: But that's not what this...
COLMES: Andrew, go ahead, respond.
FOIS: ... what officials familiar with the program and what officials were scared at, at NSA...
TOENSING: No, well, read me the line — read me the line...
COLMES: Hold on, Victoria. Let Andrew respond. Andrew, go ahead.
FOIS: That is what NSA usually does. What this article says is what they're doing now under this program is they're tapping Victoria Toensing's line...
TOENSING: No, it doesn't say that. Read me the line that says that.
FOIS: ... in case Usama bin Laden calls her.
HANNITY: Guys, we've got to run. Andrew, last question: Yes or no, if Usama calls, do you think, by law, that we should have to hang up, yes or no?
FOIS: Not if it means trampling on the rights of Sean Hannity and Victoria Toensing, no.
HANNITY: Wow. So you say hang up on Usama bin Laden?
COLMES: Is there any evidence that that happened, Victoria?
COLMES: Any evidence that that ever happened?
All right. Thank you both for being with us. Appreciate it.
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