This is a partial transcript from "The O'Reilly Factor," October 19, 2005, that has been edited for clarity.
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JOHN KASICH, GUEST HOST: Well, the ACLU sure is busy these days. That's our top story tonight.
The American Civil Liberties Union took out this full page ad in The New York Times today, comparing President Bush to President Nixon, accusing the administration of lying to the American people and breaking the law and calling for an investigation into the NSA spy program.
In addition, the groups come out swinging against a new policy for screening out potential terrorists at the nation's airports. They say training screeners to look for suspicious behavior, well, it could lead to racial profiling.
Joining us now from New Orleans is presidential historian Doug Brinkley. And from our New York studio, Bill Goodman. He's the legal director for the Center of Constitutional Rights.
Well, Mr. Goodman, first of all, is the comparison valid? And is this ad, which is clearly very extreme, really nothing more than a way for the ACLU to try to raise money from its donors?
BILL GOODMAN, CENTER FOR CONSTITUTIONAL RIGHTS: Well, I'm not going to speak to the ACLU as to what it's trying to do with the ad. But I agree with the ad in the sense that Nixon lied, Nixon broke the law. Bush broke the law and lied about it.
The quote that they have, that the ACLU has in The Times demonstrates that it's a lie. He says we go to judges when we want to engage in wiretapping.
And clearly in this instance, in many instances as now so revealed, they did not go to judges. They did it on their own. And they did it because they were afraid to have any judge, even a sympathetic court like the FISA court, looking over their shoulders and seeing what they were really up to.
And we can speculate on what they were really up to.
KASICH: All right, now Mr. Goodman, you say even though the FISA court ruled that the president had this sort of authority. And two separate federal courts also confirmed that the president had the authority to wiretap if it involved national security. Yet you continue to still say he lied and broke the law.
GOODMAN: They only - they've only ruled that he has a right to engage in wiretapping when he gets at war. Or in.
KASICH: No, that's not what they ruled, sir. You don't — let's go to you, Mr. Brinkley. Tell us what they ruled, because I think there's been — this has been litigated pretty thoroughly, hasn't it?
DOUGLAS BRINKLEY, PRESIDENTIAL HISTORIAN: It has been. And I think that the situation you have here with this ad is that — first off, it's a bogus historical analogy. Richard Nixon's Watergate break-ins, going after his Democratic opponents and the McGovernites is different than the argument that immediately after 9/11, that we were listening on phone calls of people abroad.
Remember, the Bush administration got pounded, as did the previous Clinton administration, for not monitoring flight schools in Florida, for not being — taking clues out of Detroit or Phoenix.
So you see a President Bush in action after 9/11, trying to do whatever he could. Now the problem was he didn't sign that court order. And that may end up hampering him. There may be investigations. And he's going to have to answer for it.
But by and large, the American people are going to make a difference - they're going to differentiate between a top secret program after 9/11, and somebody that's doing monitoring of political opponents, like Nixon did, who is rightfully punished for it.
KASICH: Well, Mr. Goodman, when you go back to this guy Ferris, who was planning to, you know, for example, blow up the Brooklyn Bridge, I don't know how he can compare that to somebody listening to political opponents. Mr. Brinkley makes a good point.
GOODMAN: Look, what started as a two-bit break-in with Watergate ended up with the president lying to the American people and ended up with him resigning.
And in this case, that aggrandizement on part of a president, because he thought he could do anything if he just called it national security, has resulted in what we now live with today, which is to a large degree, a suspension of the Constitution of the United States. These presidents do not like it when the Bill of Rights says they may not do things.
KASICH: I mean, a large degree a suspension of the Constitution?
GOODMAN: Well, a suspension of the Fourth Amendment.
KASICH: Come on, talk about hyperbole. That - but listen, sir, let me read to you three cases. In November of 2002, the Foreign Intelligence Surveillance Quarter Review said - they said that the president has this authority.
In 1980 in the Fourth Circuit, they ruled that warrantless searches to obtain foreign intelligence information is part of presidential authority.
And in 1974, they ruled that the court's self defense needs to weigh on the side of reasonableness.
You got three cases here, where they came out and said, in this sort of national defense circumstance, they have the right to do this.
KASICH: And yet you people, the civil rights people, keep saying they never ruled this way.
GOODMAN: I do not agree with that.
KASICH: Where do you get this from?
GOODMAN: The United States Supreme Court said in United States versus United States District Court that the president, even under the guise of national security, may not suspend the written Constitution.
In this case, it's easy for the president to go to the FISA court to ask for a warrant and to get a warrant.
KASICH: Sir, he didn't suspend the U.S. Constitution. Hey, look, he's got the three cases, OK?
GOODMAN: They were talking about Nixon at that time.
KASICH: They were talking - no, not the one in 1980, and the FISA court itself in `82.
Douglas, let me get to you on this issue, because the only thing I'm concerned about in all of this is that when it's — when it's feasible, the president should go to a third party, shouldn't he? Except when speed is of the essence. Is that correct?
BRINKLEY: That's correct. And then I think in this particular case, as you can see, there's a political fallout. He would have been wise to have signed the court order. It's basically — was a rubber stamp all of them went through. He would have gotten, for whatever reasons, and that's what an investigation public inquiry will bring out, for whatever reason, that did not happen.
I think President Bush's best defense would be, after 9/11, it was a hurly burly time. In retrospect, should have gotten that document signed. It didn't, but I was looking after the American people, trying to get terrorists around the world. We were focused on Afghanistan.
And in the future, I'll make sure that document's signed. And I think the issue would go away. If he gets too much that — defensive on a fight over presidential powers and the law, he very well might be falling into the trap that the ad like the ACLU is.
KASICH: Well, look, I mean, he — they could say, Mr. Goodman, look, we couldn't go to the court on some of these matters because frankly, speed was of the essence. And we wanted to protect Americans.
But we're going to try to go to this court and go for warrants when it's feasible. But we're not going to jeopardize national security over some — over this debate.
GOODMAN: Look, the law gives Congress a role here. He could go to Congress and say try and change the law. But the Congress has said he can't do it that way. He's got to go to the FISA court. If needs time, he's got 72 hours after the interception to go to the FISA court.
He's done none of those things. And Mr. Brinkley's point is a good one. Maybe after 9/11, he was a little confused. But today, he says I'm going to continue to do it. The Fourth Amendment and the FISA law, the FISA ad mean nothing to me. And this is a president who is in fact lawless.
KASICH: Well, look, I got to tell, Mr. Goodman, I'm going to send you this stuff myself.
GOODMAN: Yes, send it to me.
KASICH: .so you can see where both the FISA court and the ruling, and we had a judicial ruling in 1980. And it's pretty clear. The president has the right to go out in a warrantless search if national security is the issue.
GOODMAN: That is not true.
KASICH: And I think that's where most people are in this country.
KASICH: But look, let's move to the issue of the screening. The ACLU says the screening at airports where people can sit back and use police techniques to figure out whether somebody might be a terrorist is a bad idea. What's your take on that, Mr. Brinkley?
BRINKLEY: Well, look, I think that we're going to have to come up with all sorts of screening techniques. What's currently happening right now is the main screening technique is if you switch your flight or change your time of departure, that's when you get searched.
And I think we have to bring in innovative new ways. I think this makes some sense. You've got to watch that you don't get into — fall under racial profiling, which you don't want to do.
But I think we've got to kind of — there are cameras through security. And you feel — see somebody acting suspicious, it's worth making them stand through that detector that just randomly picking out people that had changed their flight.
KASICH: Well, this is an additional technique. And the only thing I can say is when they screen my five-year-old daughters or Grandma Jones, who's 87-years old at the same level, they're screening somebody who's nervous, sweating and frankly, is a possible suspect, I don't think the ACLU ought to complain. I think they ought to say they're doing a good job to protect us on those airplanes.
But guys, thanks for being with us. Thanks for your point of view.
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