Transcript: House Intel Committee Vice-Chairman Harman on 'FNS'

The following is a transcript from "FOX News Sunday" on Jan. 8, 2006:

BRIT HUME, GUEST HOST: The Bush administration has been sharply criticized recently for its surveillance program that monitors communications between suspected terrorists overseas and some people in the United States. Some Democrats charge that limited briefings of Congress violated the National Security Act.

Here to discuss concerns over that program is Congresswoman Jane Harman, to Democrat on the House Intelligence Committee, who joins us from Los Angeles.

Welcome back to "FOX News Sunday".

REP. JANE HARMAN, D-CALIF.: Thank you, Brit.

HUME: On December 21st when this program first came to light, you issued a statement that said, and I quote, "I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities."

More recently, however, you have been critical of this program, saying — or at least critical of the way that Congress has been briefed on it.

HARMAN: Right.

HUME: You were among those briefed, correct?

HARMAN: I was in the so-called gang of eight, which is the chairman and ranking member on the House and Senate side of the Intelligence Committees, and the leadership of the House and the Senate.

HUME: And outline, if you will, your concerns about those briefings.

HARMAN: All right. Well, first of all, the program we were briefed on in a very closed environment in the White House, with no staff present, on a basis that we could not discuss it with anyone, was basically a foreign collection program. I still support that program. And I think the leak of that program to The New York Times and maybe elsewhere compromises national security...

HUME: You say it's basically foreign. Were you not made aware individuals within the United States' conversations with the suspected terrorists overseas were part of the program?

HARMAN: It's a classified program, so I can't discuss what I was made aware of. But let me say...

HUME: Well, I know, but the...

HARMAN: No.

HUME: ... toothpaste is out of the tube...

HARMAN: ... it was made clear to me — no...

HUME: ... when it's known that that's the case.

HARMAN: But it was made clear to me that conversations between Americans in America were not part of the program and require — and I think they do — a court warrant in order to eavesdrop on them.

And that's been a point of confusion, because some of the press articles allege that this is a so-called, as you said, domestic surveillance program. That's not what I believe it is.

HUME: Well, all right. So in other words, your belief is that this was indeed a case of Americans being picked up, perhaps within the United States, in discussions with people overseas.

HARMAN: Well, let's just leave your comment there. I really don't want to confirm what...

HUME: All right.

HARMAN: ... the program does.

HUME: All right. Well...

HARMAN: But the point I've been trying to...

HUME: ... what is your concern about the nature of the briefings? That's...

HARMAN: My concern about the nature of the briefings, now that the program has been disclosed by the president, which is the only basis on which I could discuss anything with anybody else, is, number one, under the National Security Act of 1947 Congress is supposed to be fully and completely briefed on programs like this.

And instead, just this limited group of eight were briefed. This is not a covert action program, which is the only basis for a limited briefing. That's number one.

And number two, now that there are allegations in the press about broader activities, I think our intelligence committees, which are leadership committees selected by the leadership of people who, I believe, are all capable of holding the nation's deepest secrets — I think our full committees deserve to be briefed, and I'm hoping that will happen as soon as Congress reconvenes in about 10 days.

HUME: When did you first begin to attend or to receive at least the briefings that were given on this program?

HARMAN: In 2003. I became ranking member on Intelligence...

HUME: OK, so...

HARMAN: ... in early 2003, so I was not there at the initial briefings.

HUME: Right, OK. But you've been on it — you've been in on some since, correct, so there...

HARMAN: Oh, yes.

HUME: And there you are, sitting down there at the White House, and you know who's...

HARMAN: You bet.

HUME: ... in the room. It's just the eight of you. And you're getting this briefing — more than one.

HARMAN: Right. More than one.

HUME: You're now saying, however, that those briefings were insufficient. Why did you not, if you didn't, say so at the time and...

HARMAN: Well...

HUME: ... take the matter to the president or whatever?

HARMAN: Fair question. And my answer, in hindsight, is that I came into an ongoing process. I believed that the legal framework was set, and the briefings were about the detail of the ongoing program. Remember, I support the program.

And perhaps I should have had more information at the time. But now that I have been able to discuss this program with legal scholars — not the details of the program, but the existence of the program — since it was disclosed by the president, I now believe that under the National Security Act of 1947 the full committee should have been briefed. And that's what I'm asking for.

And I believe that that is what the law requires. I also believe that members of Congress should exercise oversight over programs like this. And there are questions about whether this program complies with the domestic laws we have. And if it doesn't, either it should be changed or they should be changed.

HUME: Do you think, then, that perhaps this program, which you say you support — are you suggesting that it may, indeed, be illegal?

HARMAN: Well, the foreign collection program that I know about I believe is legal and necessary. If in fact, as some of the newspaper stories allege, there is a domestic surveillance program going on, my view is that the law requires that domestic surveillance only be done pursuant to a court order, either with the Foreign Intelligence Surveillance Court or the criminal court.

HUME: And let me ask your view on this. Let's assume we're talking here about a program that is as you originally described it or it was originally briefed to you — that is, foreign individuals under surveillance, conversations to the United States or from the United States to them.

The Congressional Research Service — a couple of researchers, really — has come out and said that Congress — just in a couple of quotes from their report which was issued a couple of days ago — quote, "Congress does not appear to have authorized or acquiesced in such surveillance."

Later, "No legal precedent appears to have been presented that would support the president's authority to bypass the statutory route when legislation is required."

Question to you: Do agree with that assessment as to the program that you were originally briefed about?

HARMAN: Well, that legal opinion is impressive. It was issued a couple days ago. I also have one which has been distributed to the — some of the members of the Intelligence Committee, from Jeff Smith, former CIA general counsel, making the same set of points.

I think the administration should answer the question about whether it can use FISA warrants for the limited impact of this program — at least the program I understand — in the United States.

HUME: Let's stop for — FISA warrants...

HARMAN: And I have actually asked that question, and I don't have the answer. I mean, FISA does say that you can have a 72-hour delay with respect to getting court approval for what you're doing. And if there's a very limited impact in the U.S. — and I chose those words carefully — it seems to me FISA should be used.

HUME: All right. So what you're saying, then, is that in addition to your concerns about the nature of the briefings, that they were insufficient under the law, that it is your belief as well that while you've known about these programs for two years, you now believe that they require the authorization of the so-called FISA — that's the Foreign Intelligence Security Act, if I'm not mistaken.

HARMAN: Surveillance Act. Yeah. I...

HUME: Surveillance Act, I'm sorry.

HARMAN: ... I think the administration...

HUME: Surveillance Act.

HARMAN: ... needs to answer that question.

HUME: Well, what is your — I know, but you're...

HARMAN: Well...

HUME: ... a member of Congress and...

HARMAN: ... I've asked the question of the administration...

HUME: When?

HARMAN: ... and I don't have the answer.

HUME: But when did you ask it?

HARMAN: Recently. Recently, as soon as...

HUME: Well, why didn't you ask it two years ago when you started getting briefed about this?

HARMAN: Well, perhaps I should have, Brit. But again, I could not discuss this with anybody two years ago. And I did not discuss it with anybody until the president disclosed the existence of the program, at which point the considerable resources that Congress has in terms of, you know, constitutional expertise and so forth, could be brought to bear.

Now, the people writing these opinions don't know the specifics of the program, but they know enough about how the FISA court works and how criminal wiretap law works, so that they can opine about this.

HUME: All right. Let me...

HARMAN: I'm a trained lawyer myself, but I need this expertise. I think we all do.

HUME: Well, let me just — Let me come at this a different way, then. So far, however, your concerns about the program are, A, that Congress wasn't properly briefed; and second, that it was perhaps necessary to conduct some of this surveillance for the so-called FISA court to have been approached for a warrant to authorize it.

HARMAN: Right.

HUME: Now, having said all that, does anything you know about this program, whether from being briefed about it or not, raise a question with you about whether this surveillance should have been undertaken? In other words, was this a necessary thing in your view, or was this not?

HARMAN: My answer to that is basically it is a necessary thing. We absolutely do want to know the plans and intentions of Al Qaedaand these copycat terrorist cells before they're able to attack us. It's a dangerous world. I think that the notion — and by the way, you don't need a court warrant to do this — that we are listening to Al Qaeda operatives abroad and trying to understand what they're planning to do is totally valid.

HUME: So if you're listening in on an Al Qaeda suspect overseas, and you're listening to all of his or her, as the case maybe, phone conversations, and suddenly he's on the phone to someone in the United States, or he's in the United States and you're listening, and he's talking to somebody in the United States, do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized, or to go there later, or what?

HARMAN: Well, I think that in the — those conversations in the United States would be a perfect basis to get court approval. And there is a 72-hour delay mechanism in the FISA statute. So my answer to you is, number one, it is very important to learn the plans and intentions of our enemies.

And number two, we can do that within a legal framework that would give Americans comfort and actually give our court system comfort that the Fourth Amendment is being observed and that our system of laws that Congress has passed, including FISA, which was supposed to be the exclusive way to do electronic surveillance on Americans in America, are being observed.

HUME: Congresswoman Harman, good to have you, as always. Always nice to see you. I know that I can see you. You probably can't see me, which is lucky for you. Thanks very much.

HARMAN: Well, thank you, Brit.