NSA Leak Investigation?

This is a partial transcript from "Hannity & Colmes," December 27, 2005, that has been edited for clarity.

MIKE GALLAGHER, GUEST HOST: We're glad you could join us for tonight's version of "Hannity & Colmes." I'm Mike Gallagher, filling in tonight for Sean.

President Bush continues to defend his decision to approve a program for domestic surveillance without warrants, saying it's vital for American security. He's also blasting the recent leaks of this and related programs as, quote, "shameless." Some conservatives are calling for an investigation into the leaks.

Joining us tonight for more is civil rights attorney Michael Gross and Republican strategist and former Bush and Cheney adviser Ron Christie. Ron's also the author of "Black in the White House." And I'm about half- way through "Black in the White House." It's a great read.

Let's start with you, Michael. Clearly, this leak of classified information is illegal. But let me guess. You're going to say that, in this case, it's worth the effort, right?

MICHAEL GROSS, CIVIL RIGHTS ATTORNEY: Well, whistleblowers have always been a great service to society. And if he broke the law — I mean, he or she may well have broken the law, there are consequences. And like Daniel Ellsberg learned, you can get indicted, convicted and be prepared to go to jail for that.

But don't throw a smoke screen over what really went wrong here. This has got no comparison with the Joe Wilson-Valerie Plame leak. That was a leak done purposely to punish someone who wrote the truth about an administration position which was falsely stated to the public. Here, someone — and then, as a response, her covert status was leaked to punish her and her husband for that.

GALLAGHER: But possibly, this is a leak that's just designed to sell books for this "New York Times" reporter, who's going to publish his book about the CIA in a few weeks. I mean, the timing of this, Michael, seems real suspect. Does it not? They've had this information for a year, and now they decide to leak it?

GROSS: Nobody's going to get diverted from focusing on the significant issue here. The Congress of the United States made it real plain. The language says, if you don't use the FISA court properly to get a warrant, you go around that, you're committing a crime punishable by five years. This is the same thing that Nixon was impeached for.

And the Supreme Court of the United States told Nixon exactly what President Bush is saying when he said, Nixon said, "I have the authority as commander-in-chief to wiretap my enemies," and the Supreme Court said, "Absolutely not."

GALLAGHER: Ron, it didn't take long to hear the word "impeachment" or "Richard Nixon" from Michael's lips. The president, our president, used an vivid example of why this surveillance is crucial. He pointed out that a two-minute conversation between an Al Qaeda terrorist and an operative could lead to the massive destruction of life here in the United States. If that were to happen, God forbid, I don't think anybody would be squawking about warrants or, you know, these secrets courts, would there be?

RON CHRISTIE, FORMER ADVISER TO PRESIDENT BUSH: No, absolutely not. Mike, you're absolutely right.

Look, these are entirely dangerous times that we're living in right now. The United States was attacked on September the 11th, 2001. And the president of the United States is acting as commander-in-chief to do everything under the law to protect the American people.

President Clinton, President Carter have recognized that there is a right, there is an inherent power under the Constitution that allows the president of the United States to conduct certain searches without a warrant in order to protect the...

ALAN COLMES, CO-HOST: Where does it say that, Ron? Excuse me. The Fourth Amendment talks about warrants. It doesn't say he has the right to do it without warrants. Tell me exactly what law or cite the passage of the Constitution that gives the president the right to do this without a warrant? Where is that? I'd like to know.

CHRISTIE: Hi, Alan. First of all, it's nice to see you.

COLMES: Hi! Nice to see you, too.

CHRISTIE: Thank you. First of all...

COLMES: Merry Christmas.

CHRISTIE: ... Merry Christmas to you, too, and a happy new year in another week.

COLMES: Thank you very much. Now let's get to the topic at hand.

CHRISTIE: Listen, under Article II, the president has the power, first of all, to protect the United States, to uphold, preserve and defend the Constitution of the United States....

COLMES: No, we're talking about specifically about warrants. You're avoiding the issue.

CHRISTIE: Alan, I'm about to answer the...

COLMES: You're avoiding the issue. The Fourth Amendment is the operative amendment here...

CHRISTIE: No, I'm not. Alan...

COLMES: And you don't want to acknowledge that it talks about warrants specifically.

CHRISTIE: Alan, if you want to talk about the Fourth Amendment, what the Fourth Amendment to the Constitution says, it protects Americans against unreasonable searches and seizures. The Supreme Court, Alan...

COLMES: And that you must get warrants. And, in fact, the FISA court law, the 1978 law, specifically talks about warrants. And Tom Daschle, in his op-ed piece yesterday, said the president wanted domestic capability. They specifically denied it. And he went and then claimed that that law, the use of force act, gave it to him anyway, and he was wrong about that.

CHRISTIE: Well, since we're going to talk about the law, Alan, what the FISA court of review held in 2002 is that there is an inherent authority that is granted to the president of the United States — and I'd love to give you the passage of it — that allows him to conduct warrantless searches for foreign intelligence...

COLMES: Where does it say "warrantless searches"? The FISA law, Michael Gross, talks about warrants.

CHRISTIE: No, Alan, I'm not — Alan, I'm not — Alan...

COLMES: Hold on, Ron. The fact is, you can go to the court — you can actually go and do a search, and then you have 72 hours, as I understand it, to get a warrant from the court.

GROSS: Of course you do.

(CROSSTALK)

CHRISTIE: Alan, wait, let me finish one point, Alan.

GROSS: There is absolutely no excuse for withdrawing this issue from we, the people, by giving it to our duly elected representatives. If the president, and he may well have a good argument, needs more power than the Constitution and the law gives him, and the Supreme Court told him, when he's called people enemy combatants and then wouldn't give them any trials, you can't do that. The Constitution doesn't give you that power.

Go to Congress. They didn't refuse...

(CROSSTALK)

CHRISTIE: No, see, Michael, this is...

GALLAGHER: Hang on. Hang on, guys. Hold on. Hold on. Don't go away. Hold those thoughts. We're going to continue just in — and, by the way, you didn't wish me a merry Christmas, Alan.

COLMES: I did off the air.

GALLAGHER: All right. That's good.

(COMMERCIAL BREAK)

COLMES: Welcome back to "Hannity & Colmes." I'm Alan Colmes.

We continue with former adviser to President Bush and Vice President Cheney, Ron Christie, and civil rights attorney Michael Gross.

Does it trouble you, Ron, that we have a situation where the editor and publisher of the New York Times and executives from the Washington Post are called into the Oval Office prior to publications of stories with the president of the United States warning them, telling them, asking them not to go with stories?

The Times waits a year, finally gets its story right, and finds a way to do it without compromising security. The Post waits, as well. But is it appropriate, in a nation with a free press, to have the president call editors into the Oval Office to ward them off from publishing a story?

CHRISTIE: Alan, first of all, the president of the United States, as we were talking about in our last segment, is doing everything he can to protect the American people from being attacked by terrorists.

COLMES: Legally...

(CROSSTALK)

CHRISTIE: That's what he's doing. And what the president did was he brought those folks into the Oval Office, he asked the folks to come into the Oval Office, and warned about the national security implications of releasing this data.

And you just said, Alan, that they did it legally. This is what just drives me absolutely nuts.

COLMES: Good.

CHRISTIE: It's all fine that folks talk about Valerie Plame and, oh, this poor woman was outed, someone who was in "Vanity Fair," and she was out there not doing too much...

COLMES: That was after the fact, Ron. She was in "Vanity Fair" after she was outed.

CHRISTIE: Wait, wait, wait. Alan, Alan, Alan, Alan.

COLMES: Let's get the time line here.

CHRISTIE: Let me just finish my comment here. Now you're talking about somebody who was in the United States government who had access to classified information that was on a need-to-know basis, and they felt, well, gee, even though we have this classified information, we're going to leak it to the "New York Times" and to media outlets, which is...

COLMES: Well, why is it you're all concerned about a whistleblower, but you're not concerned about who leaked the identity of a CIA agent that could have also caused death, it could have caused people to lose their lives, it compromised national security.

CHRISTIE: No, Alan...

COLMES: It seems like there's a double-standard here, because I don't see any conservatives upset about that particular leak.

CHRISTIE: See, this is unbelievable. The president in the Valerie Plame case said that he wanted all the facts to be known in that case and he wanted those who were responsible, if they were found — for disclosing...

COLMES: Come on. You know the president could easily find out who leaked in his White House.

(CROSSTALK)

CHRISTIE: ... classified information..

COLMES: You don't think he knows who leaked out of his own White House?

GROSS: The commander-in-chief can't figure it out.

CHRISTIE: Alan, actually, I'm trying to answer your question. He said that he wanted those to be held accountable. Now, we have a case where there is a proven fact that someone has leaked classified information. The terrorists across the pond are trying to hurt us. And now we're in a case...

(CROSSTALK)

COLMES: Well, wait, what was classified? What was leaked...

CHRISTIE: What was classified? Alan...

COLMES: ... was that the president may have broken the law, which is why the president didn't want it to come out. And that's why he calls the New York Times in. He doesn't want it underscored that he may be law breaking.

CHRISTIE: No. To answer your question, Alan, why in the world would someone feel that they could take classified information that discusses the ways in which the National Security Agency gathers and disseminates intelligence? That's a broadcast to the terrorists who are trying to destroy this country.

GROSS: Why would he knowingly, intelligently, and arrogantly break the law? Why not go to Congress and debate this openly? Why can't we know why he needs this information?

Would the president have the authority as commander-in-chief to suspend elections, sir? Would he?

CHRISTIE: Well, sir, your question...

GROSS: Can he make the individual determination, "We don't want elections"? Would he have the authority to put all the Muslims in this country in a concentration camp?

CHRISTIE: I disagree with your premise of the president...

GROSS: Would he?

CHRISTIE: Well, sir, for one who actually worked and knows the president of the United States, he did not arrogantly abuse the power.

GROSS: Of course, he's done it arrogantly. He has said over and over again — and Vice President Cheney has been more forthright about this — we want an imperial presidency, we want more power in the executive branch.

CHRISTIE: No, actually...

GROSS: Congress can't tell us what to do, and the judiciary can't tell us what to do.

GALLAGHER: You know, you know...

CHRISTIE: That's the great thing about having an opinion. But let me just talk about facts. The fact of the matter is the president...

GALLAGHER: Well, hang on. Hang on. Hang on. Hold the phone. Wait a minute here. I've got to get this in...

CHRISTIE: Sure, Mike, go ahead.

GALLAGHER: ... because I hear this double-standard. You guys are squawking about warrantless searches.

COLMES: We're squawking about the law, the rule of law.

GALLAGHER: Let's squawk about Bill Clinton and his warrantless searches back in 1994 that he publicly endorsed in highly violent housing projects. I don't know if you were squawking about that then, Michael.

How about Jimmy Carter in 1978? He authorized warrantless searched against men accused of being Vietnam spies. Come on, Michael.

GROSS: Is that...

GALLAGHER: Isn't it true that this nothing new, but you guys are just on George Bush's case, because you have such contempt for this president?

GROSS: Look, is that the defense, that somebody else did it in the past?

GALLAGHER: The defense is, it's been done, and it's an effective way to try to get the bad guys. And we're at war, Michael!

GROSS: I'll tell you what. President Wilson went to the Congress for authority for the Sedition Act before he got those crazy people to pass a law saying that, if you dissent from the administration's view, you go to jail.

GALLAGHER: But they were wrong, too?

GROSS: President Roosevelt went to Congress before he locked up Japanese Americans and went to war, and he brought Winston Churchill over here. Why can't this president go to our Congress and debate this issue?

GALLAGHER: Why didn't Jimmy Carter go...

GROSS: It's a Republican Congress.

GALLAGHER: Well, Jimmy Carter didn't do it. Bill Clinton didn't do it. Were you on their backs, too, at the time?

GROSS: And Jefferson owned slaves. What does that have to do with it?

GALLAGHER: I mean, and, you know, Ron, we weren't at war when Jimmy Carter and Bill Clinton did it. We're at war right now with the bad guys.

CHRISTIE: Exactly. And, Mike, my last point to that would be, when President Clinton actually conducted a warrantless search against Aldrich Ames, not only was it a physical search, but it was also a warrantless surveillance search.

GALLAGHER: Of course.

CHRISTIE: But the Democrats never talk about that. We are a country at war.

GROSS: Listen, there's a little bit of difference between saying...

CHRISTIE: The president of the United States — sir, I didn't talk over you — the president of the United States is doing everything within his power within the law and within the Constitution. The FISA court of review has held that the president is allowed to conduct these warrantless searches.

But what I want to know is Democrats, Alan, Michael, others, when are they going to say this is what we need to do to protect this country?

(CROSSTALK)

CHRISTIE: They never come up with a plan of what we need to protect this country. All they do is attack George Bush.

GROSS: What did President...

CHRISTIE: Let's talk about what we should do to protect this country.

GROSS: What did President Bush mean when he said to us on television, "These searches are done with warrants?" Now, was that false?

CHRISTIE: Sir, I don't know what you're talking about.

GROSS: You don't know that he said — come on, it's been played over and over again.

CHRISTIE: I heard the president of the United States last week, actually...

GROSS: He was Buffalo. And he said, "We are getting this information, but only with warrants." And that's absolutely untrue.

CHRISTIE: That's interesting, because I actually heard President George W. Bush, the current president of the United States...

GROSS: I'm talking about him.

CHRISTIE: ... say that there were limited warrantless searches that were people who had affiliations with Al Qaeda on conversations coming from overseas.

COLMES: All right, we've got to take a break. But warrantless searches are only for foreign-to-foreign communication, not domestic-to- foreign or foreign-to-domestic. That's what the FISA law says.

CHRISTIE: Alan...

COLMES: It doesn't about — that's what it says.

CHRISTIE: Alan, we're not talking about the FISA law.

COLMES: I'm talking about the law. It's foreign-to-foreign.

CHRISTIE: Well, no, actually, Alan, I'm talking about the law. And I'm talking about what the FISA court of review has held...

COLMES: Well, we're talking about what he did with domestic...

(CROSSTALK)

CHRISTIE: ... which the president has the inherent ability to conduct...

(CROSSTALK)

COLMES: We've got to take a break, unfortunately...

GROSS: ... president in a military uniform.

COLMES: I thank you both very much.

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