The Balance Between the War on Terror and Civil Liberties

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This is a partial transcript of "Special Report With Brit Hume" from Dec. 16, 2005, that has been edited for clarity.

JIM ANGLE, GUEST HOST: A huge rally in Washington today after The New York Times reported that President Bush authorized efforts to track phone and e-mail communications linked to Al Qaeda even if one end of the conversation was in the U.S., which the story said, requires approval from a special court, which the administration did not get. What about all this? What is the law? And did the president really do something illegal as his critics claim? Here to talk about all that is Ron Kessler who’s written expensively about intelligence gathering and is the author of 15 books.

Ron, thanks for joining us.

RONALD KESSLER, "THE CIA AT WAR" AUTHOR: Thanks for having me.

ANGLE: Let me ask you first, what is it that the president authorized the National Security Agency to do?

KESSLER: He basically carved out an exception to the Foreign Intelligence Surveillance Act, or FISA Act which does require warrants under the claim that under the War Powers Act — war power and the Constitution, he can do this. This actually was presented to Congress when this FISA Act was first proposed, the idea the president, to protect the country, can do this. And they essentially sanction it by accepting that proposition.

ANGLE: Even way back when FISA was first authorized?

KESSLER: That’s right. And the other point that hasn’t come out, is that there is a review process, I’m not sure of what the details are, I’m sure that it involves the Justice Department. But there is a review process after these intercepts occur, so that there’s a review to see if they were on too long, if they really were related, not only to terrorism, but to an imminent attack. So, if there were an abuse that certainly would have come out.

ANGLE: Apparently you would curtail it after the fact.

KESSLER: That’s right, exactly. And of course, you know, the main point here is we are living in a different world. We’re talking about terrorist who don’t care if they’re killed who are trying very hard to get a nuclear device, to get biological — which could kill millions of people. And if you get one little snippet of information before that happens, that may be enough to stop the plot. And let’s say the Israelis tell us that they have bin Laden’s phone — and by the way we did have bin Laden’s cell phone until The Washington Post blew that in 1998 and so he stopped using that phone.

But let’s say we have bin Laden’s phone, the NSA gets that information. They have to be on that call immediately; you simply cannot wait for any authorization. It would take even on an emergency basis, at least a day, maybe two days to get all the signatures required to get an authorization from the attorney general, this is under the emergency provision of the FISA Act. So, you simply have to do it. And the question is, you know, was this done properly? Well, they did disclose it to the intelligence communities; they did disclose it to the FISA court judge. There is a review process in place and all these members of Congress are running around saying well, this is terrible; a lot of them knew about it and never objected.

ANGLE: So you’re saying the president didn’t go off and do this on his own and he wasn’t trying to hide it. On the other hand, it is controversial. Let’s sort of go through what might have happened here. Let’s say — let’s just create a hypothetical situation. A terrorist linked to Al Qaeda calls from Afghanistan or Pakistan and calls someone in Cleveland. Now, one side of that is a U.S. person, as they call them, citizen or noncitizen, the other side is overseas. Now, what — obviously the administration wanted to have something where they could act more quickly, what kind of — what is the dilemma that they were trying to solve, do you think, by having something that didn’t require going through all of these bureaucratic hurtles?

KESSLER: Well, the main thing is timeliness. You know, you have to be on that call immediately. If you miss that call by a few minutes that may be enough to cause millions of deaths. So, that was the first problem. The second problem, obviously, is they did not want to go to Congress to get a law that specifically permitted this because look what’s happened with the Patriot Act. You know, the Patriot Act is the most simple thing, it just says you have to — you can — once you get an approval from a judge to wiretap an individual, you can wiretap him regardless of whether he’s using a disposable cell phone or fax or whatever. What can be more obvious, things like that, and even now despite that Congress is blocking it.

ANGLE: Well, plus it would call attention to it from the terrorist side. Now, one former intelligence agent told me today, he said, look, NSA and other people in the intelligence community are not looking to spy on Americans. They’re looking to stop bad things from happening. What protections are there here if you accidentally pick up a conversation from an American who is not connected to Al Qaeda?

KESSLER: Well, there isn’t, you know, but that’s the price we have to pay for our freedom, I think. You know, certainly if they find that there’s no connection to terrorism, they will get off. The fact is there have not been any abuses found since J. Edgar Hoover’s time. So, we’re talking about all these paranoid conspiracy theories about how the government wants to spy on us and they want to go after any war protesters, but the fact is there’s never been one instance of that found. And we are talking about our survival. We’re talking about a nuclear device that could go off in New York and just wipe out that whole city.

ANGLE: Ron Kessler, thanks very much.

Watch "Special Report With Brit Hume" weeknights at 6 p.m. EST.

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