updated 12/21/2005 3:37:39 PM ET 2005-12-21T20:37:39

Guests: Carl Levin, John Cornyn, Bob Graham, David Gergen, Jonathan Alter, Barbara Walters

ANDREA MITCHELL, NBC NEWS CHIEF FOREIGN AFFAIRS CORRESPONDENT:  Did President Bush have the legal authority to eavesdrop on Americans?  The administration says yes, but leading Senate Democrats say they were never adequately briefed about a top-secret plan to spy on Americans and they never approved it.  Let‘s play HARDBALL.

Good evening.  I‘m Andrea Mitchell, in tonight for Chris Matthews.  The White House is defending the way it briefed Congress about a top-secret domestic surveillance plan.  This after the ranking Democrat on the Senate Intelligence Committee, Jay Rockefeller says he never signed off on the plan. 

In a 2003 letter to Vice President Cheney obtained by NBC News, Senator Rockefeller wrote, quote, “Clearly the activities we discussed raise profound oversight issues.  Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities.”

And now “The New York Times” and “Washington Post” are reporting another case of domestic surveillance.  The FBI collected intelligence on environmental, animal rights and poverty relief groups.  We will hear what some of those groups are saying today later in the show.

But we begin, though, with Democratic Senator Carl Levin of Michigan, who sits on the Intelligence Committee and is the ranking Democrat on the Armed Services Committee.  Senator, welcome.  Thanks for being with us.

SEN. CARL LEVIN (D), MICHIGAN:  Andrea, sure.

MITCHELL:  Well, what do you make of all of this?  The vice president in particular very strongly defended this today, the president yesterday, other officials today, that this domestic spying is absolutely necessary, as is the Patriot Act, we should add, to protect Americans from another terror attack. 

Dick Cheney said on his flight back that, in fact, there would have been other attacks, could have been other attacks if such electronic surveillance had not been implemented. 

LEVIN:  Well, we have a law that allows for tapping telephones.  And when it comes to foreign intelligence—it‘s called the FISA law—you can go to court.  If there is any evidence that there is a terrorist organization or person around, and anybody who has got links to that person, can have their telephones tap. 

That‘s what the law provides.  You don‘t have to show probable cause that a crime has been committed.  There is very broad authority to tap the telephones, providing you let a court be involved, to tell the court either in advance or afterwards. 

And this is what the president and the vice president and everyone else in the administration is ignoring, is that there are emergency powers in this law that allows the administration to tap the wire first and then to go to a court afterwards and then get the authority afterwards. 

So we ought to be worried about big brother government in this country, because where there is unlimited power, it always ends up with abuses.  That‘s what the history of this country shows. 

And that‘s why Congress stepped in, in the late 1970s after the Nixon administration and said, “Hey, we will allow you to tap wires, we will let you go after foreign intelligence people even without probable cause of a crime so you could just monitor their calls, but we want you to have a court looking over your shoulder.” 

MITCHELL:  Senator, let me play devil‘s advocate here and point out that, as the president began to suggest, as Condi Rice has suggested, this is another world.  This isn‘t 1978, this isn‘t even 1980s or 1990s where we‘re tapping telephones.  This is the world of giant computers, of super satellites that are picking up terror conversations or suspected terrorist conversations, phone numbers trigger NSA alarms. 

They were able, in fact, to take out a terrorist in Yemen who was driving on a road—this is the guy who was supposed to be the mastermind of the USS Cole bombing in 2000.  In 2002, they picked up his voice on a cell phone from Yemen while he was driving in the back seat, he was talking from a cell phone, and they took him out with a CIA, you know, unmanned aerial vehicle firing a Hellfire missile. 

What‘s wrong with that? 

LEVIN:  Nothing.  Sounds fine to me. 

Did they use the—was this an American citizen having their telephone tapped inside the United States? 

MITCHELL:  Well, in fact, there was an American citizen in that car.  One of the six men killed was...

LEVIN:  Well, it may have been an American citizen, but was this someone in the United States whose phone was being tapped? 

MITCHELL:  Absolutely not. 

LEVIN:  OK.

MITCHELL:  So that‘s the point you‘re making, that... 

LEVIN:  It‘s a very important point...

MITCHELL:  Exactly. 

LEVIN:  ... is that people in this country have a right to privacy.  When they‘re overseas, they have less of a right to privacy.  And surely people who are not U.S. citizens overseas, we don‘t have these protections for. 

But you know what, Andrea?  The president says that he acted legally.  Now, that‘s what the issue is.  It‘s not—the threats are there, the needs are there.  We have laws to try to address those needs.  And if those laws are inadequate, we change those laws.  We‘ve done that all the time.  We brought that law up to date since 1978, by the way. 

And so the argument here, though, is the president says that he has legal authority to do what he did, and that‘s the issue:  What is that legal authority?  Has he named it?

MITCHELL:  And he says it‘s his authority as commander in chief in the Constitution and his authority under acts of Congress that were authorized after 9/11, military action. 

LEVIN:  Yes, well, that 9/11 action, by the way, is very clear.  It authorizes military force against the people who attacked us on 9/11 from Afghanistan. 

I voted for that.  I know what it said.  It authorized military force.  That‘s got nothing to do with tapping the wires of American citizens. 

MITCHELL:  So you think that he is interpreting this far too broadly, his interpretation, his legal advice and that—has he broken the law then?  I mean, what are we talking about here?

LEVIN:  I don‘t think we know yet.  I just don‘t think we know yet until we see the legal opinions that he got, that he claims he got from his lawyers.  We start with that.  We start with what are the claims that they make for legal authority.  And then we take it from there. 

But I‘m not going to reach any conclusion relative to whether he acted legally or not, except to tell you I have not seen yet an explanation that satisfies me or most—I think a lot of other people around here—I won‘t say most, but a lot of other people—that he did have authority. 

But he‘s got a burden here.  He claims to have acted legally with authority.  He hasn‘t laid out that authority for the American people.

MITCHELL:  They say they repeatedly, perhaps a dozen times, briefed members of Congress, the top eight, the leaders of the Intelligence Committee and the leaders of Congress.  That would include one of your colleagues, Jay Rockefeller.  We pointed out that he objects now.

Pat Roberts, the chairman of the Intelligence Committee, said today that, in fact, that was authority, that he believes Jay Rockefeller is being disingenuous, because Senator Rockefeller went along with it, even though he wrote that letter to Dick Cheney that I just quoted from.  Roberts is claiming that Rockefeller never once objected in his presence.

Does that mean that Congress approved it? 

LEVIN:  No.  Congress clearly did not approve it.  And there is no provision in the law which governs this, the so-called FISA law, for a  notice to Congress at all.  There is another law which has to do with notifying Congress when it comes to intelligence activity, which is not this law, but that‘s beside the point. 

Even if he did notify people in the Congress, the leaders...

MITCHELL:  Well, clearly he did, because they...

LEVIN:  ... that doesn‘t give him authority.  That does not give him authority to do whatever he wants to do, just because he gives notice to someone. 

In the case of Jay Rockefeller, Jay Rockefeller wrote a letter to the vice president saying, “I am really troubled by what I hear, but I‘m not allowed to talk to a lawyer.”  So, surely, that doesn‘t represent authority. 

But let me be real clear.  We have a law.  We are a nation of laws.  We don‘t have dictatorship in this country.  The law says, when it was written and subsequently when it was amended, that this is the only authority that the president has to tap the telephones of American citizens here in the United States.  It is the exclusive authority.  That‘s what Congress said.  And unless the president is operating under that authority, it seems to me he is really in troubled waters. 

MITCHELL:  Senator, if you take that view to its logical conclusion, should the president follow that law as strictly as you interpret it, even if he knows that he can prevent a terror attack? 

LEVIN:  No. 

MITCHELL:  OK.  So there is an exclusion? 

LEVIN:  If I were the president and if there were an incident that I faced that for some reason I can‘t imagine, I didn‘t have authority under that law to act and go to a court later—and by the way, I don‘t see that, since there is the emergency authority in the FISA law, but I would take that step. 

But he wants a broad authority to do whatever he wants, even though the law says that you should go to court either before or after.  That‘s too broad an authority, too sweeping, too unlimited, no checks and balances on him, except he says that he takes an oath to abide by the Constitution.  That is not a check and balance on the executive branch.

And getting advice from his own lawyers, by the way, is not a check and balance.  The check is in the courts.  That‘s what we wrote in the law.  He ought to abide by that.  And if he has some legal opinion saying he doesn‘t have to, he should share that with the American people.

MITCHELL:  OK.  What are you going to do about it? 

LEVIN:  We are going to have hearings, I hope.  The commitment is to have hearings. 

Senator Specter, the Republican chairman, has grave doubts about the legality of what the president did.  This is not a partisan issue, when the chairman—Republican chairman of the Senate Judiciary Committee, Senator Specter, says that he has grave doubts about whether or not this was legal. 

Let me tell you something:  This is not at all a partisan issue.

This is a matter of American liberties and people... 

MITCHELL:  Are you prepared to wait until late January, early February, after the confirmation, Supreme Court confirmation, that‘s now tying up the Judiciary Committee? 

LEVIN:  Yes, I am, providing we start doing the research necessary and get all the documents necessary.  It would give us a month to prepare for really good, bipartisan hearings. 

MITCHELL:  Thank you very much, Senator Carl Levin.  Good for you to come in today.

And coming up, reaction from one of the president‘s supporters, Republican Senator John Cornyn of Texas.  And later much more on the new report that the FBI ran surveillance on environmental, animal rights and poverty relief groups.  You‘re watching HARDBALL on MSNBC.

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MITCHELL:  Welcome back to HARDBALL.  Senator John Cornyn is a Texas Republican and member of the Armed Services Committee.  Senator, welcome. 

SEN. JOHN CORNYN (R-TX), ARMED SERVICES CMTE.:  Thank you, Andrea.

MITCHELL:  Senator Levin just said that he thinks not only did the president go beyond the law, beyond what is appropriate, but that Congressional notification does not really count here, that the court needs to supervise, and that this needs to be investigated.

You‘re a lawyer and a member of the Armed Services Committee - the Intelligence Committee rather.  What do you think about what needs to be done? 

CORNYN:  Well, certainly, I think it‘s appropriate for Congress to have oversight hearings of any intelligence-gathering activity.  But the president appears to be discharging his responsibility to intercept communications between al Qaeda operatives in the United States and overseas under an authority assumed not only by this president but by President Clinton, Carter and Reagan. 

And I haven‘t gone back any further, but my assumption is, after having done some research, is this is a power that all presidents have thought they had to protect the American people. 

MITCHELL:  Let me interrupt you there, because my understanding of the law—and I‘m not a lawyer; you are, sir, but my understanding of the law is that the National Security Agency is not permitted, has never been permitted to go without court supervision to monitor Americans domestically.  That‘s the province of the FBI.  The NSA can intercept communications, perhaps some foreign embassies; foreigners are their targets. 

But the difference now is that these are intercepts between Americans, U.S. citizens and others in the U.S., and people overseas, and that that is where this crosses a line.

CORNYN:  Well, this has to do really fundamentally, I think, with whether you can do this without a court order or without a warrant, as we would talk about it in a criminal justice context. 

And President Bush has—believes he has this authority.  The Foreign Intelligence Surveillance Act review court has assumed that he had this authority.  And my research has revealed that every president, at least back to Jimmy Carter, has argued that they have the same authority. 

MITCHELL:  But why didn‘t he go to court?  He could‘ve gone to court. 

We understand that 4,713 times between 2002 and 2004 they did go to court.  Only 96 cases were revised by the judge, four were rejected outright out of 4,713. 

Why didn‘t he go to court then?  The court is obviously not really throwing up objections. 

CORNYN:  Well, in some instances, the need for speed in actually getting the—surveilling the conversation is very important.

MITCHELL:  Yes, yes, but there‘s a 72-hour—they can do it and then they‘ve got 72 hours to go to the court after the fact.  Doesn‘t that give them plenty of time to get this done? 

CORNYN:  Well, the fact is it‘s not an exclusive method to get the information under the president‘s authority under the Constitution.  

You‘re right, you can go ahead and do it and then come back 72 hours later, but I don‘t understand how that makes the case of the critics that you can‘t do this without a court order or warrant, because I believe that both of those procedures would be available. 

The problem is, as Director Mueller testified before the Judiciary Committee...  

MITCHELL:  FBI director.  

CORNYN:  Excuse me.

MITCHELL:  The FBI director.

CORNYN:  FBI Director Mueller in 2004, he said, unfortunately the FISA process has become cumbersome and bottle-necked, and they had delays that have discouraged the process of getting approval to get that kind of information.  And he‘s concerned about it, and I am too.  

MITCHELL:  Well, one of the things you said recently is that you can‘t worry about civil liberties when you‘re dead—something to that effect. 

So you‘re basically coming down hard on the side of protecting American citizens if it‘s a choice between privacy, civil liberties on the one hand, and protecting against a possible terror attack?

CORNYN:  I think it‘s a false choice between civil liberties and security.  I think we need both.  But there needs to be a balance. 

And I think the president has a responsibility to use every legal means available to him to get intelligence that he can use to protect Americans lives.  And that‘s really, I believe, what he‘s done in this instance. 

MITCHELL:  Senator, do you think that Alberto Gonzales, because he was White House counsel at the time, would have to testify?  What is the—what ground rules will Republicans want to establish as to who testifies?  What about Condi Rice?  She was national security advisor when these decisions were made.

CORNYN:  Well, Andrea, this is a classified program.  But the “New York Times,” having written about this program, has now disclosed to our enemies what we‘re doing and how we‘re doing it.  So ...

MITCHELL:  Now the how, they just disclosed the what.  They didn‘t disclose any methods. 

CORNYN:  They—well, that‘s right, but the hearings would have to be conducted under strict guidelines to make sure that our classified intelligence-gathering capability isn‘t compromised.  

But clearly, Congress does have an important role.  Oversight is important.  But what I disagree with is those that suggest that somehow this is a new and made-up power that no other president has exercised, because that‘s just not true. 

MITCHELL:  And, Senator, do you think that these hearings would have to be closed hearings, that the American people would never get answers to what went on?

CORNYN:  Well, part of it would certainly have to be.  I don‘t know whether all of it would have to be. 

But, you know, this is the most sensitive sort of intelligence-gathering that we really can‘t afford to let our enemies know about or they‘ll be able to evade it.  And so at least some of it would have to be classified and remain closed. 

I know that strikes people as odd, but it‘s really a matter of our national security and protecting Americans against further terrorist attacks. 

MITCHELL:  Thank you very much, Senator John Cornyn.  To be continued.

CORNYN:  Thank you.

MITCHELL:  And up next, with this report this morning about the FBI‘s surveillance of environmental, animal rights and poverty relief groups, we‘ll hear what some of those groups are saying today.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  The nation‘s capitol woke up this morning to front page stories in The Washington Post and New York Times that the FBI has been conducting surveillance of mainstream protest groups concerned about animal rights and the environment. 

They FBI says it is merely trying to find information about violent extremists who have caused property damage.  But the story has ignited a huge debate about how far our government should go.  HARDBALL Correspondent David Shuster reports. 

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DAVID SHUSTER, HARDBALL CORRESPONDENT (voice over):  People for the Ethical Treatment of Animals is a group known for creative public demonstrations.  Celebrities including Pam Anderson have taken off their clothes to take on consumers and bolster the PETA ad line that it‘s better to wear nothing than wear fur. 

Today, FBI documents first given to The New York Times and Washington Post and now on the American Civil Liberties Union Web site show PETA is under FBI investigation.  The documents offer no proof the group is a subversive threat or has been involved in any illegal activities, but the files shows federal agents have been tracking PETA for years. 

JEFF KERR, PETA GENERAL COUNSEL:  I think certainly the FBI should know the difference between a terrorist and someone handing out a vegetarian starter kit or somebody protesting naked in a cage on a sidewalk. 

SHUSTER:  The FBI documents also show federal agents have been monitoring groups involved in poverty relief and environmental cause, including Green Peace.  Greenpeace is known for exposing environmental problems. 

JOHN PASSACANTANDO, GREENPEACE SPOKESMAN:  We don‘t commit crimes and we don‘t have ties to criminal organizations.  I believe the FBI, the IRS and other arms of this administration are being used to try to stifle the voice of the critics, the peaceful voice of the critics of the Bush administration. 

SHUSTER:  The FBI said today it is not targeting individuals or organizations because of any political belief, but rather because some demonstrators are connected to others suspected of committing crimes. 

Seven years ago, activists with the Earth Liberation Front allegedly burned down part of a Colorado ski resort.  Six years ago, demonstrators in Seattle created mayhem at the World Trade Organization talks.  And in recent years, the FBI says it has cataloged hundreds of violent acts that have cost tens of millions of dollars. 

A bureau spokesman told HARDBALL that while the al Qaeda terror organization is the FBI‘s number one priority, when it comes to home-grown terrorism, environmental and economic action groups, said the spokesman, are America‘s biggest threat. 

But the actions by the FBI, including infiltrating PETA and other groups with informants, come in the wake of renewed lobbying by real estate developers, dairy farmers and cattle ranchers, all of whom have asked the Bush administration to crack down on industry opponents. 

And the FBI documents show aggressive efforts towards a wide variety of groups.  One document shows federal agents held on to a list of students at Stanford University who attended a conference opposing military action against Iraq.  Another file shows the FBI tracked a vegan community project in Indianapolis. 

KERR:  It is an abuse of power and it really needs to stop.  This is a continuation of the type of secret spying that has been going on in this country and needs to come to an end. 

SHUSTER (on camera):  FBI agents say it is unfair to make comparisons to J. Edgar Hoover‘s FBI or to Richard Nixon‘s enemies list.  The agents point out that, unlike 35 years ago, the FBI is not using information to smear people, but rather just to try to keep up with increasingly sophisticated and sometimes violent activists. 

The question, as it was decades ago, has the FBI now gone too far? 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEO CLIP)

MITCHELL:  Thank you, David Shuster.  Up next, former senator Bob Graham was the chairman of the Senate Intelligence Committee when the N.S.A. expanded eavesdropping on American citizens.  We‘ll talk to him when we return.

You‘re watching HARDBALL on MSNBC.

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MITCHELL:  Welcome back to HARDBALL. I‘m Andrea Mitchell in tonight for Chris Matthews.  Former Democratic Senator Bob Graham is speaking out about the administration‘s briefings—the presidential order on wiretaps on U.S. citizens without a court order.  He was in those briefings and he joins me now from Florida.  Senator, welcome.  Good to see you again, Sir.

BOB GRAHAM (D), FORMER U.S. SENATOR:  Good evening, Andrea.

MITCHELL:  The White House says you all were briefed and knew all about this.  You were in charge of the intelligence committee when this NSA approval was expanded.  Did you know about it?

GRAHAM:  Not until much later.  What we were briefed about was the fact that there were some technical changes required by the fact that messages, which used to go, for instance, from Baghdad to London, were now being routed through the United States. 

Since the national security agency, which is our basic agency for the collection of that kind of signals intelligence is restricted to collecting messages outside the United States, could it intercept these transmitting messages.  The administration was making the case that they should be allowed to do so.

I believe that most members of the Congress who heard the briefings agreed with the administration.  But what we didn‘t hear was the fact that they were not proposing to use the standard procedures of the Foreign Intelligence Surveillance Act, but rather were going to go with warrant-less wiretaps directed not only at foreign calls but also at U.S. citizens.

MITCHELL:  I‘m not sure you were still the chairman, but certainly by July of ‘03, Senator Rockefeller on the Intelligence Committee says that he was briefed, because he, in fact, wrote a letter objecting to the warrant-less wiretaps or eavesdropping.  So he was aware of it at that stage, that they were not going to the court.

GRAHAM:  Yes.  I left the Intelligence Committee at the end of 2002. 

And Senator Rockefeller then became the ranking Democrat on the committee.  And I think his letter, which basically said that he didn‘t have enough information to judge whether the program was legal, whether it was effective, much less to do what apparently had been requested to do, which was to endorse the program.

MITCHELL:  We were told there were briefings in October of 2002 and November of 2002, which you would have had.  But you‘re saying that either they didn‘t brief you fully enough or you misunderstood what they were saying or they were deliberately ambiguous, I suppose, is the other possibility there?

GRAHAM:  My remembrance is that the focus was on this question of, could NSA collect signals that were trafficking through the United States, but no discussion of whether they were going to no longer follow the law, in terms of getting a warrant before they instituted a wiretap interception.

MITCHELL:  What about the administration‘s argument that communications are now happening so rapidly and they are so intermingled between domestic and foreign, that to adequately protect American citizens, they need to take these steps?

GRAHAM:  I think the administration has to answer a series of questions.  One, what are the problems with the Foreign Intelligence Surveillance Act. 

No. 2, if they had identified those problems, why didn‘t they go to the Congress and ask that they be corrected.  In the aftermath of 9/11, the Congress would have done almost anything the administration suggested. 

And No. 3, of the cases that have been made based on these warrant-less intercepts, would they have been also made, had they followed the legal procedures.  Has, in fact, this process of avoiding the law made us safer?

MITCHELL:  What do you think Americans really need to be worried about more?  A terror attack or someone going into their hard drive and intercepting their e-mails?

GRAHAM:  I think they need to be more concerned about the effect of the United States seeing a retreat from our basic values at the same time we are trying to ask the countries from which the terrorists come to adopt principles of democracy and liberty. 

Wouldn‘t it be ironic if at the same time, through our initiative, we were able to establish a democracy in Iraq, but we were losing our basic liberties and freedoms here at home?

MITCHELL:  Do you think that the president and the Congress need to work out a better arrangement than simply briefing the eight members, the leaders and heads of the intelligence agencies?  Rather, intelligent committees.  Do more people need to be involved or would that lead to too many leaks, frankly?

GRAHAM:  Well first, I think that‘s what the hearings that I understand Senator Specter is going to call in the Senate Judiciary Committee should be in part about.  What is the necessary degree of informing the other branches of government, both the legislative and judicial branch, before you proceed to take very sensitive actions that could infringe upon the civil liberties of individual Americans?

MITCHELL:  Thank you, Senator Bob Graham.  Good to see you again, from Florida.

GRAHAM:  Thank you.  I want to welcome now Jonathan Alter of “Newsweek” magazine and former White House adviser David Gergen, who now teaches at Harvard‘s Kennedy School of Government.  Welcome both.

DAVID GERGEN, FORMER WHITE HOUSE ADVISER:  Thank you.

JONATHAN ALTER, NEWSWEEK MAGAZINE:  Thanks, Andrea.

MITCHELL:  David, do you think that there has been a real infringement of civil liberties in this age of rapid communications and super satellites, super computers?  Has the NSA gone too far?

GERGEN:  It certainly appears that way, Andrea.  We don‘t know some of the facts yet.  There are some critical facts still missing.  We went through this back in the 1970‘s with Richard Nixon.  I worked for Richard Nixon, as you well know.

And I remember all these arguments from John Ehrlichman and others that the president had these inherent powers, commander in chief, in the Constitution to do damn near anything he wanted.  And over at the Congress, and we got slapped down by the Supreme Court and then the Congress in the late ‘70s passed laws that I thought had clarified and settled these issues once and for all.  And so it‘s a great mystery to me why when it was so apparently fairly easy to do, why the Bush administration chose to bypass, to skirt this law, or indeed to violate it.

MITCHELL:  And Jonathan Alter, one of the issues that arose today is whether the president deliberately misled people.  Let‘s listen to what Mr.  Bush said about wiretapping in April of 2004.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Any time you hear the United States government talk about wiretap, it requires—a wiretap requires a court order.  Nothing has changed, by the way.  When we are talking about chasing down terrorists, we are talking about getting a court order before we do so.

(END VIDEO CLIP)

MITCHELL:  Well, apparently not in many, many cases.  Thousands of people were eavesdropped on.  And what I understand, Jonathan, this is not your father‘s wiretapping with some alligator clips.  This is really sophisticated stuff, where they are able to track people by cell phone, they can track—they can dive into people‘s hard drives, intercept all sorts of communications right?

ALTER:  Yes, and I think it‘s a good thing that the NSA can do that.  Because remember, we do want to connect the dots and prevent another 9/11 from happening.  The critics of the president in this case are not trying to weaken national security. 

They are going to David‘s point about abuse of power.  It‘s not that we‘re eavesdropping, it‘s how we‘re eavesdropping and under what laws.  And when the president said yesterday that he was doing this under the constitution and under the authority of the congressional resolution that let him use force right after September 11th in Afghanistan, that is not by any lawyer‘s opinion outside of the administration. 

That is not legal authority.  So we really are looking at a question here, Andrea, of whether the president may have violated the law.  And that‘s where this is going politically in the months ahead.

MITCHELL:  David, we‘ve been through this kind of movie before, many times, you and I. 

GERGEN:  We have indeed.

MITCHELL:  Are we heading towards some sort of constitutional crisis over this, or is this just going to be another set of hearings?

GERGEN:  I would be surprised, Andrea.  It strikes me that now the cat‘s out of the bag and everybody knows about this program, that the administration would be wise to enter into some very private conversations with leaders on the Hill to explain to them what their problems are over the current law.  See if they can‘t find some cures short of a hearing.

I would be surprised if either side really wants to push very hard in the hearings, especially Senator Specter, as a Republican.  If he can fix the problem, he may well see it‘s not necessary to go to public hearings. 

And I would imagine, given the seriousness of what‘s going on in Iraq and the fact that they cannot get diverted in the administration over in a big legal constitutional crisis, I would think they‘d try to find some way to solve this.  It‘s all out now.  What is there—now everybody knows this program is under way, go fix the problem.

MITCHELL:  Hold that thought, Jonathan.  More with Jonathan Alter and David Gergen when we return. 

And a reminder, for the best political debate online, just go to Hardblogger, our political blog Web site.  Now you can download Podcasts of HARDBALL.  Just go to our Web site, HARDBALL.MSNBC.com.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  rMD+IN_rMDNM_We‘re back with Jonathan Alter of “Newsweek” and former White House adviser David Gergen of Harvard University. 

Jonathan, you broke a big story about how the president actually asked the “New York Times” publisher and top editor not to run the story on this domestic spying, warrantless spying. 

ALTER:  Yes, that‘s right.  We haven‘t seen that—and maybe David can correct me, but I don‘t believe we‘ve seen that seen that since John f.  Kennedy asked the “New York Times” to tamp down a story about the Bay of Pigs before that ill-fated invasion of Cuba.  And Kennedy later said he wished the “Times” had gone ahead and run the story. 

In this case, the president is not saying this.  He is saying it was a shameful act who leaked this story to the “Times.”  rMD+IN_rMDNM_But it‘s really hard to see where there is any violation of national security or any real problem with the publication of this story. 

It‘s more in the category of an embarrassment to the Bush administration, because clearly, they were operating outside of the law, as a lot of members of Congress now perceive it.  I think that Senator Graham raised the key question, Andrea, if they had a problem with the FISA law, why not go and change the law rather than circumventing it? 

MITCHELL:  Jonathan, did the president personally ask Arthur Sulzberger of the “New York Times” and Bill Keller, the managing editor—personally ask them not to run this? 

ALTER:  That is my understanding.  That is my understanding that it was a personal request.

MITCHELL:  Now one other instance that comes to mind was when my former colleague, John Palmer, White House correspondent, was asked by Jimmy Carter not to broadcast the Iran rescue mission and, of course, NBC did not.  And ...

ALTER:  Well, those are questions of timing.  You know, I think the

press for many years has agreed that when it comes to timing of an invasion

and they did this with the Cuban Missile Crisis as well.  Before Kennedy went on and talked about the Missile Crisis, the “Times” agreed not to run a story, because when it involves a military operation, there is a really good reason for the press to hold back. 

But when it involves spying on the American people—and as you indicated earlier, Andrea, nothing about sources and methods that could compromise national security, there is no reason not to run the story. 

MITCHELL:  David, the president seems to be getting a little bit of a bounce in at least one poll from perhaps all of these speeches he has been giving, a little bit humbler posture, perhaps, on mistakes that were made. 

In the new “Washington Post”/ABC News poll, he seems to have gone up to 47 percent approval rating.  At the same time, 46 percent approve of his handling of the situation in Iraq.  That‘s a bump up.  It‘s very different from our NBC News/”Wall Street Journal” poll next week, so we don‘t know if this is an anomaly, but do you think that he is benefiting a bit by being more public? 

GERGEN:  Yes.  First of all, Jonathan wrote an excellent column in “Newsweek” this week.  Be congratulated.  Yes, the president got good news and bad news I think yesterday, Andrea.  The “Washington Post” confirmed—

I don‘t know that the balance was eight points, as they say, but there has definitely been movement in his direction. 

Cautionary note:  There are still more people that disapprove than approve of his presidency, and also the movement that the “Washington Post” showed was almost entirely within his base.  He is rallying his base effectively.  Very little movement among independents or moderates or Democrats. 

But the bad news yesterday, which I think is, in some ways, more compelling a story, is this early vote return out of Iraq.  You know, if that holds, and this is with two-thirds of the votes counted, the religious parties doing—having a commanding lead.  If that holds, frankly, that is really bad news from where the administration stands.  They so much wanted Allawi to get in with the secular parties, as you know. 

MITCHELL:  And if in turn it turns out that we have this religious leadership taking the dominant role in Iraq, we have got a very serious problem. 

GERGEN:  Very serious.  And so these polls—I don‘t think that‘s a way to measure how we‘re doing, how the president is doing.  You know, he got an upward spike after the first rMD+IT_rMDNM_Iraqi rMDNM_election, as he should have.  And I think he has had a very effective media blitz.  He‘s made the argument much more effectively.  He has changed the tone.  Didn‘t change his strategy, but he has changed his tone, so give him credit for doing that. 

But the real test is not in the polls here.  The real test is going to come in the next few months in Iraq.  And this—if the election turns out badly, you know, we are going to be in this odd position the French found themselves in in North Africa.  They pushed for elections and they didn‘t like the results very much. 

MITCHELL:  And then we have to live with those results and that raises all sorts of other questions.  Well, thank you both very much, Jonathan Alter and David Gergen, for joining me tonight.

And when we return, we will talk to a very special guest.  Barbara Walters, her special, “Heaven, Where Is It and How Do We Get There” airs tonight.  This is HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.  Seventy-five percent of Americans believe in heaven.  And what heaven looks like depends on whom you ask.  Barbara Walters explores what the world thinks about the great beyond in her ABC special “Heaven: Where is it and How do we Get There?” 

(BEGIN VIDEO CLIP)

BARBARA WALTERS, ABC NEWS:  Is President Bush an evangelical? 

UNIDENTIFIED MALE:  Yes.  He‘s born-again.  A United Methodist born-again, bible-believing man. 

WALTERS:  Is Laura Bush an evangelical?  She has been born again?

UNIDENTIFIED MALE:  Yes.  As far as I know.

WALTERS:  What if you‘re not born again? 

UNIDENTIFIED MALE:  If you‘re not born again, then you don‘t have the assurance of going to heaven in the after life. 

WALTERS:  If a person does not accept Jesus Christ as his savior, does he go to hell? 

UNIDENTIFIED MALE:  Yes. 

(END VIDEO CLIP)

MITCHELL:  The special airs tonight an ABC at 9:00 p.m. eastern.  And Barbara Walters is with me this evening to tell us more about heaven and earth and everywhere in between. 

Thanks Barbara for being with us. 

WALTERS:  My pleasure, Andrea, it‘s so good to be on the air with you. 

You know how I feel about you.  So for me this is heavenly.

MITCHELL:  Great friends and having fun and we are all looking forward to your special tonight. 

Tell me about faith an spirituality.  Tell me why you think Americans now seem in greater need for spirituality, and perhaps people around the world?  What is it about our society today? 

WALTERS:  Well, first of all, we‘re living in a time of fear.  I think we‘re also living in a time of isolation.  The Internet, the iPod, things that enable us to live our lives without interacting with other people.  It‘s interesting, perhaps that we are more spiritual now than we had been in the past. 

What we tried to do was we talked with the leaders of every major faith.  We went to India to speak with the Dalai Lama, who lives there in exile who, by the way does not believe in Heaven but believes in reincarnation.  And if you don‘t lead a good life, you could come back as a dog, an and. 

We talked to a scientist who feels there is a God gene. 

We talked, among others, we had some humor, but we had a rather grim interview with a would-be suicide bomber who did not succeed in blowing himself up who is in a high security prison.  He wanted to kill Jews and go to paradise, remember those virgins that are going to be in paradise, and said that if I do not believe in his faith, I will go to hell. 

MITCHELL:  Barbara, what did you find were the different views about the after life?  For instance, the suicide bomber, what did he think besides the 21 or 22 virgins?  What did he think he would have found had he actually committed his suicide bombing?   

WALTERS:  Well, in his heaven, in the Muslim belief, there is sex in heaven, there‘s wine in heaven, there‘s all the earthly pleasures in heaven.  By the way, that number, 72 or 73, we spoke to an Imam of one of the great mosques in New York.  He said that‘s a number in Arabic that means countless.  Like I told you a hundred times, Andrea, not to touch that dessert. 

MITCHELL:  So, it doesn‘t matter that I got the number wrong.

WALTERS:  No.  It could be 72 or 85. 

In the Christian religion, in the Catholic religion, there is no sex in heaven.  It is a different kind of a heaven.  It is a heaven warmed by God‘s love.  There is no marriage. 

But one of the points that you see in so many of the religions.  Mitch Albom, who wrote “The Five People You Meet in Heaven,” the best-selling book talked with us about this and so did Maria Shriver.  You will meet your loved ones in heaven.  And that‘s an enormous comfort if you feel that way. 

MITCHELL:  Is there a big difference between the Christian belief of in an after life and the way Jewish people think of the after life? 

WALTERS:  There‘s not a big difference, because as the Rabbi told us, remember that the Christian religion was based on so many aspects of the Jewish religion back in those early holy times. 

There‘s more of an emphasis in the Jewish religion on life on earth, leading the good life.  Whereas, for example, in the Catholic religion, the purpose of life is to go to heaven and be at peace with God and go to heaven, even though the Jewish people, and here I should let the rabbi speak, believe in an after life.  It is more important to have a good life here on earth. 

MITCHELL:  We saw a clip about your question to the evangelical leader about the president and Mrs. Bush.  Do you think the fact that our president is born again, just as Jimmy Carter had been, do you think the fact that we have a deeply committed religious person in the White House changes the way Americans feel about religion?  It certainly changes our politics.

WALTERS:  Well, it gives him a kind of certitude.  I wanted to talk with you about this, because I had not heard him described as an evangelical even though he was born again, and I did not know that Laura Bush was considered. 

The man that we talked to, is pastor Ted Haggard, who is the head of one of the largest, he‘s the president of the National Association of Evangelicals, one of the largest evangelicals organizations. 

I didn‘t know that Laura Bush was born again was an evangelical, and I wonder if you thought this made a difference in the way he—not just in the way he lived his life but in the way he governs the country? 

MITCHELL:  Certainly by his own description, it has influenced the way he responded after 9/11, for instance.  What do you think about people who have had near-death experiences?  How do they feel about heaven? 

WALTERS:  This is how we originally began this whole discussion and idea of heaven, because we talked with a woman who is in our piece, who is not particularly spiritual or religious, but who had died after surgery, after giving birth to a child, and felt she‘d gone to heaven. 

Described it.  The bluest sky she‘d ever seen, dogs and cats on a stairway gleefully laughing, convinced she had seen heaven as Elizabeth Taylor and Bill Clinton talked about having a glimpse of heaven. 

Now scientists we talked to said it is the sign of a dying brain.  All kinds of things get mixed up, all kinds of past memories come together.  Therefore, it‘s a dream or hallucination?  But not really a vision of heaven. 

But you can‘t tell that to these people who feel that they have been there and seen that, and it‘s changed their lives. 

MITCHELL:  Fascinating stuff.  Great experience, Barbara, and great thing for me interviewing you, and we look forward to your special tonight. 

WALTERS:  Thank you, and happy holidays to you and that wonderful husband. 

MITCHELL:  Thank you.  Thank you very much. 

And join us again tomorrow night at 5:00 and 7:00 eastern for more HARDBALL.  And on Friday a very special edition of HARDBALL, the top political plays of 2005, from the indictment of “Scooter” Libby to the slow response to Hurricane Katrina. 

Join Chris Matthews, “Newsweek‘s” Jon Meacham and me for the biggest stories and the top HARDBALL moments of the past year.

Right now it‘s time for the “ABRAMS REPORT” with Dan Abrams.

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