This is a partial transcript from "Hannity & Colmes," December 20, 2005, that has been edited for clarity.
RICH LOWRY, GUEST HOST: The New York Times is reporting today that counter-terrorism agents at the FBI have conducted even more surveillance and intelligence-gathering operations than were previously known. The documents reportedly suggest that several groups here in the U.S. were at least indirectly monitored.
Thanks to both of you for joining us. And, P.J., I'd like to start with you. And I'd like to read a statement that the Clinton administration's deputy attorney general, Jamie Gorelick, said in testimony to Congress in 1994. This is what she had to say.
"The Department of Justice believes and the case law supports that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."
So, P.J., isn't that exactly the same authority that the Bush administration is asserting in this instance and is prompting so much outrage? So, if you're outraged at what Bush has done, do you think the Clinton administration was willing to trample on the Constitution, as well?
P.J. CROWLEY, FORMER NSA MEMBER UNDER CLINTON: Well, let's be clear. I think that, first of all, after 9/11, we did have to make adjustments in how the intelligence community does business. I have no objections to giving the NSA more authorities.
But at some point, once you've invoked special powers 30 times as part of a conflict that is open-ended, it's really time to make sure that you adjust the case law underlying so that prior...
LOWRY: So, P.J...
LOWRY: ... prior to 9/11, years before 9/11, in 1994, Jamie Gorelick was asserting this authority. Was she wrong to do so?
CROWLEY: You're quoting something out of context. I don't know whether it applied to a one...
LOWRY: How is it out of context?
CROWLEY: Well, is it a one-time application? Is it an indefinite application? The key here is...
LOWRY: She's asserting the general authority of an ability of an administration under its executive power to protect the country to conduct warrantless searches.
CROWLEY: And, again...
LOWRY: Peter, isn't this exactly the same authority that we're talking about in this instance?
PETER BROOKES, FORMER CIA OFFICER: Yes, I think you're right, Rich.
CROWLEY: Let me try it again. After 9/11...
BROOKES: I mean, Rich, I think you're...
CROWLEY: ... it's a perfectly appropriate to do this, but, at some point...
LOWRY: Well, she was asserting this authority prior to...
CROWLEY: ... if you want to change the way the NSA is doing business, let's debate it, let's change...
ALAN COLMES, HOST: P.J.'s argument that Clinton did it, too, is really avoiding what's going on right now in this administration. And, Peter, what we're talking about right here is acts of civil disobedience, groups, special interest groups. We're talking about an FBI document indicating that agents in Indianapolis planned to conduct surveillance as part of a vegan community project. Another document talks of a Catholic workers groups' semi-communistic ideology. A third indicates the bureau's interest in determining the location of a protest over llama fur planned by PETA, People for the Ethical Treatment of Animals, as The New York Times reported.
Are you telling me that this is appropriate, that we should be looking at these groups in a time of war?
BROOKES: Well, all we know is what The New York Times told us. There's a lot of allegations out there on both of these cases. I mean, I would certainly hope that the FBI were spending its time on fighting Al Qaeda and protecting this country as opposed to these groups, unless they have some sort of association with criminal activity or terrorism.
So all we know is what The New York Times told us, Alan, at this point. And it's pretty spotty.
COLMES: Well, I mean, you could say, "OK, it's the New York Times," but wait a minute. We have every reason to believe, given an administration that wanted to define people as enemy combatants without a right to a lawyer or a trial...
BROOKES: No, we don't have — you can't characterize them in that way, Alan. That's completely unfair.
COLMES: ... an administration that we now know has spied on Americans and, against what the president said in 2004, as Doug Schoen pointed out, he said, "There must be warrants if we're going to do searches." Now he said the opposite.
BROOKES: No, that's not true. The president...
COLMES: That's what he said in 2004.
BROOKES: ... since 9/11, the president has wide constitutional and statutory authority in times of war to protect our national security. And that's what he's doing. I don't think that you can relate these two things.
COLMES: Well, according to what law? They've cited this authorization of force as giving them the permission to do it. But that only talks about military force. So you tell me where. What law gives the president the authority to go and spy or listen to conversations on Americans? Where is that authority?
BROOKES: I recommend that you read the Constitution. I recommend...
COLMES: Where does it say that in the Constitution? The Fourth Amendment talks about warrants. Where does he have the authority to do it?
BROOKES: When he's been given this authority for force, he's allowed to do this to protect our national security.
COLMES: What law? You can't cite the law. There is none.
LOWRY: All right, guys. We're going to have to leave it there. Let me point out though, Alan, just because something shows up in the FBI files, it doesn't mean there's an investigation of the group. Pretty much anything that's mentioned to the FBI shows up in there.
COLMES: Are you saying it's appropriate to look at PETA, to look at vegan groups?
LOWRY: This is an ACLU smear job, an ACLU smear job.
COLMES: I still want to know where in the Constitution and what law gives the president this authority.
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