updated 12/21/2005 9:14:45 PM ET 2005-12-22T02:14:45

Guest: Joe Biden, George Allen, Frank Gaffney, Bob Baer, Michael Beschloss,

ANDREA MITCHELL, MSNBC ANCHOR:  Why did the Bush administration authorize the secret use of wiretaps on Americans without court approval?  Is it to move quickly against terrorists or to expand presidential powers?  Let‘s play HARDBALL.

Good evening, I‘m Andrea Mitchell in tonight for Chris Matthews.  President Bush maintains that he has the legal authority to approve domestic spying.  Vice President Cheney has taken his defense of the top-secret surveillance plan one step further. 

He‘s says reforms put in place after the Vietnam War and Watergate eroded presidential power and that the executive branch needs to be strong to fight the war on terror. 

Meantime, a federal judge on the secret court that oversees wiretaps has resigned in protest of the secret warrantless surveillance plan.  And a second federal judge on that court tells NBC News tonight that the remaining 10 judges are expected to meet to discuss the program within the next two weeks.  Tonight, reaction from defense and CIA veterans of the terrorism war. 

In a moment, Senator Joe Biden, but we begin tonight with Senator George Allen, Republican of Virginia and a member of the Foreign Relations Committee.  Welcome, Senator. 

SEN. GEORGE ALLEN ®, VIRGINIA:  Good to be with you, Andrea. 

MITCHELL:  Senator, why shouldn‘t Americans be concerned, especially after today‘s revelations that some of these surveillances caught up domestic calls between people within the United States, not calls to overseas sites? 

ALLEN:  Because the reason is—that they shouldn‘t be concerned is that the government is trying as they can, as we can, as the president, the executive branch can to try to intercept and glean as much information we can against these terrorists. 

The one situation that I think you might be talking about right now was that a person might have been in this country, but their cell phone number was in a foreign country.  And with the globalization of telecommunications, somebody can have a telephone that has a French number or maybe has an Iraqi phone number, but they bring it here into this country.  The reality ...

MITCHELL:  But Senator, isn‘t that exactly why the courts should be used?  The courts can be used retroactively.  They‘ve got 72 hours but that way there‘s a record.  And Americans won‘t have any way of knowing, say critics, whose being tapped, whose e-mails are being intercepted, especially if things can go wrong.  In this kind of global war and global information system, there‘s no way to separate these things out. 

ALLEN:  Well, generally speaking, it is much better.  I agree with you that it makes more sense if it is practicable to have independent judicial review, do the FISA courts.  However, the president needs to have flexibility. 

The law, his constitutional rights and duties and responsibilities, allow him to do so.  President Bush is not the first president to do this.  His predecessor, President Clinton, did.  President Carter did. 

And if one wants to look at various cases, like the United States versus Trong, had to do with—it was a 1980 case, during the Jimmy Carter administration, where they don‘t have time to be going through all this paperwork.

And the number of hours or days that it may take to get that warrant means that that information is not gleaned, the information is not acquired, and maybe we don‘t corral some of these terrorists as quickly as we could or it‘s a complete missed opportunity . 

MITCHELL:  Let me just clear the record up, Senator, because we‘ve checked today, with both the Carter and the Clinton White Houses, and every lawyer that we‘ve spoken to says that they did not do this. 

They did not do what this administration has now conceded and, in fact, claims credit for doing, which is to use the National Security Agency to spy on Americans, to spy on people making calls to and from the United States without a court warrant. 

ALLEN:  Well, I‘ve actually—well, the documents I saw that President Clinton actually authorized the attorney general, then Janet Reno, and certain key people to give the authority for such warrantless eavesdropping ...

MITCHELL:  For the FBI, but not for the NSA is my understanding. 

ALLEN:  Well, right, for the FBI, OK.

MITCHELL:  I think the big difference is that it‘s this super secret spy agency that many people are suggestions doesn‘t have any controls over it other than this intelligence court. 

Well, let me take you beyond that, because the intelligence court itself has had one resignation, admittedly a Democrat.  A Clinton-era appointee has resigned from this 11-person court and we talked—NBC News talked to another member, not a Democrat, and he says that he has some concerns—not deep concerns but some concerns—of the other remaining 10 judges are going to meet within the next two weeks.  So people involved in this are concerned about the president. 

ALLEN:  I think it‘s completely legitimate to be concerned, but people also need to understand the law, the responsibilities and in fact, the constitutional authority of the president of the United States.  If they don‘t like it, I suppose they can propose amendments to the Constitution. 

But the president is trying to—in this effort, trying to identify terrorist threats, determine those threats, and then act.  And one of the ways you have to do it is to try to intercept some of these calls. 

They get all sorts of information off of laptops, off of different means about these terrorists and al Qaeda in particular, and they need to act on it.  And no one‘s actually been harmed by this.  This is not as if somebody is being detained or they‘re ...

MITCHELL:  Well, how would we know? 

ALLEN:  Well, they‘re not being ...

MITCHELL:  We actually don‘t know whether anyone‘s been harmed. 

ALLEN:  Well, being detained is a different thing.  No one‘s talking about suspending the writ of habeas corpus, which has been done by presidents in time of war in previous years in our history of our country. 

MITCHELL:  But the point is that we don‘t know whose privacy has been invaded nor what records are being kept.  So there‘s no way to know what‘s out there.  You wouldn‘t know if your phone calls were intercepted. 

ALLEN:  That‘s true.  That‘s true.  And it‘s one of those risks or one of those judgment calls we have to make that is it worth it to allow the president and our intelligence agencies, our national security agencies, allow them the flexibilityrMD+IN_rMDNM_, especially the way communications are now, whether it‘s the Internet or cell phones that move around all over the country and all over the world, do we want them to have that ability to act quickly, flexibly to protect America from terrorist threats?  I‘m willing to take that risk. 

MITCHELL:  Senator, let me—Senator, let me ask you this.  Let‘s conceive that the technology has obviously changed dramatically since 1978 when this intelligence court was established.  Why didn‘t the president come to Congress and propose changes in this law so that he could move more quickly and wouldn‘t have to go to the court? 

ALLEN:  Because he didn‘t.  It‘s part of the plenary powers of the president of the United States. 

MITCHELL:  Should he have?  Do you think it would have been wiser to have been more up front about it? 

ALLEN:  No.  In fact, there are concerns of people that some terrorists, including al Qaeda, now understands what‘s going on and some of the things that might be actually being investigated or some of those conversations are being intercepted, that now they‘re going to change their method of communication. 

In fact, I don‘t want to get into all of it, but some of the things I‘ve heard from people on the intelligence community and on the committee about what these revelations have done has actually harmed our ability to actually get this information. 

So if the president came out publicly, all that‘s doing is telegraphing some of the methods and the ways that we are actually getting information to thwart these terrorist attacks, as well as intercept some of their financing. 

MITCHELL:  Now, the Republicans in the White House—largely Republicans, although there were some defections—failed to cut off a filibuster today against the Patriot Act.  Senator Specter has indicated that he thinks you all should pass the Patriot Act and then he would make a commitment to make changes in January, but that way at least it wouldn‘t expire.  But if that doesn‘t take place, what penalties do you think Democrats will pay for the Patriot Act expiring at the end of this year? 

ALLEN:  I think it‘d be a terrible penalty for the American people because of this partisanship.  The Patriot Act, as originally crafted, it was done in haste.  It needed improvement. 

Some of my concerns are similar to the concerns we‘re talking about as far as the independent judicial review and in fact, the conference report from the Senate and the House differences improves that.  And I‘d say 80 percent to 90 percent of my concerns are addressed. 

To let the Patriot Act expire would be irresponsible and dangerous for this country.  I predict that before this night is over, a deal will be reached.  It‘s a lot of political chicken being played here and I think what‘ll happen is we‘ll extend the Patriot Act, with these new modifications, with these improvements of judicial review for an independent examination for these warrants. 

And then they‘ll also be a commitment, similar to what Senator Specter, I think, very wisely proposed and that sometime in the Spring, the tweaking for some of the very relatively minor, but to some significant, aspects of it will be taken up for a vote. 

But we should not allow it to expire because I guarantee you, the terrorists are not going to stop wanting to hit this country after New Years Eve. 

MITCHELL:  OK, Thank you, Senator George Allen.  If I don‘t see you before then, Merry Christmas and let‘s have the Redskins beat the Giants on Saturday. 

ALLEN:  I surely hope so and I hope to see you there. 

MITCHELL:  I hope to see you too.

ALLEN:  All right.  Adios. 

MITCHELL:  And coming up, Democratic reaction from Senator Joe Biden, the ranking Democrat on the Foreign Relations Committee. 

And later, how are wiretaps like these actually done?  Former CIA field officer Bob Baer will join us. 

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK) 

MITCHELL:  Welcome back.  We‘ll be talking to Senator Joe Biden about the domestic surveillance program and Iraq in a moment.  Today, Republicans accused Democrats of playing politics with the White House spy story.  The RNC sent out this press release saying, quote, “Presidents Bill Clinton and Jimmy Carter both authorized search/surveillance without court orders.”

The RNC press release goes on to cite an executive order from President Clinton on February 9th, 1995 that says, “The attorney general is authorized to approve physical searches without a court order.”

But that actually leaves out a crucial part of the sentence.  So let‘s clean that up.  The actual executive order from President Clinton reads, “The attorney general is authorized to approve physical searches without a court order if the attorney general makes the certifications required by that section.”

And that section refers to a requirement that the attorney general certify that the search will not involve quote, “The premises, information, material, or property of a United States person.”

In other words, U.S. citizens or anyone inside the United States.  It‘s the same story about how the RNC is framing former president Jimmy Carter‘s executive order, which is taking it out of context. 

Ron Brownstein is a political reporter for the “Los Angeles Times.”  Ron, selective use of history is not unusual in politics, but what is going on here?

RON BROWNSTEIN, POLITICAL REPORTER, LOS ANGELES TIMES:  When you‘re in a fight, you reach for any tool that‘s handy.  And any weapon that‘s handy.  And both sides are—have used selective history in their past.  But I don‘t think this is a fight that‘s going to be decided by references to history.  In terms of the public reaction to this, it‘s going to be kind of a facts and circumstances overlaid over the basic divisions in the country. 

I suspect that many people who like George Bush are going to look at this as Churchillian and many people who don‘t like George Bush are probably going to look at it is Orwellian.  And it basically reinforces what you think going in.  This is someone who does what it takes to protect the country, this is someone who has no respect for the law or any kind of check on his power.  Where you start probably has a lot to do with where you end up on this.

MITCHELL:  Well, have they set up successfully, the White House, this premise of you‘re either for security and protecting the American people post-9/11 or you‘re worried about surveillance.  This either/or proposition, when a lot of people say that‘s a false choice.

BROWNSTEIN:  And in fact, I think if you look at polling, it‘s clear the American public sees that as a false choice.  The immediate aftermath of 9/11, there was a significant majority—it consistently saw in polls that the average person would have to give up some of their civil liberties to protect the country.

Those numbers have plummeted since.  And now you have a majority feeling that we can balance both.  I am not sure that argument is going to be the strongest one.  And when the president is basically going to say is, what may be his strongest argument is, “These are the kinds of things we have to do in this fast-moving world to protect us.  There‘s a lot of uncertainty out there.”

But I doubt this is going to be something that‘s going to get overwhelming support from the country, in the way that it might have after there‘s a lot of questioning about it, not only among Democrats, but Republicans on the Hill.  And the first polls I saw today, the country was about 50/50, as you might expect.

I think the facts will have a lot to do with this, too, as we learn how broad this program was and to what extent it really did impinge on Americans inside—on communications inside the borders of the country.

MITCHELL:  I was talking to Dave Gergen, whom you know well, last night about this, and he said that he thinks this is a cumulative effect, where you‘ve had Abu Ghraib, you‘ve had accusations about Guantanamo, going around the Geneva Conventions.  A lot of secrecy.  And that all adds to a public suspicion.  Do you think that is true?

BROWNSTEIN:  You know, it‘s funny, I was thinking today that in some ways, the defense may be more ominous to many people than the offense, in the sense that there are probably not that many Americans worrying tremendously about the civil liberties of people whose phone numbers turn up in al Qaeda cell phones.

Maybe they should, but that probably isn‘t going to be the main concern.  I think what really is exercising—may exercise many of the critics is the president‘s assertion, his defense that he has the inherent authority to do this, following that long list of other ways in which he has basically said, “International convention or to some extent congressional oversight doesn‘t apply to me in this time of war.”  It‘s that kind of sense of the president pushing beyond the limits that I think is really going to animate those concerns about this.

MITCHELL:  Well is this rooted in a desire to combat terrorism and belief, a firm belief that this tool is necessary?  Or is it partly wedded to a belief, a philosophical belief that executive power needs to be reasserted.

BROWNSTEIN:  I think it‘s probably both.  And in fact, they probably see the second, the reassertion of executive power as a tool in service of the first, which is fighting terrorism.  They firmly believe, and I think the president very much, at being president on 9/11 was a searing experience. 

And I am sure that at the core of his priorities every day, is “What do I do to prevent another attack?”  Now, you know, whether he has gone at that in the right way is a different question.  But I do think that the two are directly connected in his mind.

MITCHELL:  Thanks very much, Ron Brownstein.  And we‘re joined now by Senator Joe Biden, the ranking Democrat on the Foreign Relations Committee, just back from Iraq law week—oversaw the elections.  And now thrown directly into this fight over domestic surveillance.  Senator, welcome.

SEN. JOSEPH BIDEN (D-DE), FOREIGN RELATIONS COMMITTEE:  How are you, Andrea?  Pleasure to be with you.

MITCHELL:  I‘m fine, good to be with you.  Thanks for joining us.  What do you think about the steps that the administration has now admitted to taking?  Domestic surveillance, no court order.  You‘re an experienced lawyer and member of the Judiciary Committee.

BIDEN:  Well, I was on that committee—that conference committee way back when, Andrea, when we wrote this so-called FISA Act.  That the secret court we set up so we can preserve American civil liberties and not worry about giving the store away to terrorists or foreign terrorists.

And I‘m quite frankly confused.  I heard your conversation with Ron and you asked whether or not this grandizement of presidential power or fighting terrorists was the primary reason for what was going on.  I‘m beginning to think it was the grandizement of power, because I don‘t quite get it. 

Every single thing and every example the president‘s given about why he had to go around this court, the only president I know to assert that the courts are relevant in terms of who we can wiretap is able to be met by the way the court is set up.  And that‘s what confuses me.  There was no need to do any of this.

MITCHELL:  Well, isn‘t there a need because of the change in technology?  That‘s the argument. 

BIDEN:  No, not at all.

MITCHELL:  That technology has increased exponentially and they‘ve got to move rapidly and they‘re intercepting, literally, millions of pieces of information an hour.

BIDEN:  Let me explain that.  I‘m going to tell you my perspective in that.  Under the FISA law, the president of the United States can do all of this for 72 hours, for three days, without doing anything.  You just do it, period. 

So he doesn‘t have to go to a court at all to decide to pick up all this information.  If he decides he wants to continue to do that, he has to then go to the court within 72 hours and say, look, these are the guys I‘m eavesdropping on and these are the people and this is the reason why.  And it‘s a very low bar. 

Something like 19,000 times—what was it, 19,000, I can‘t remember now, I think it was 19,000 times, they‘ve gone to the courts in almost every case said fine, go ahead. 

Now, there‘s another provision no one‘s talking about.  The other provision we wrote into the law, back in ‘78, if I‘m not mistaken it was ‘78, we said if there‘s a declaration of war, and by the way a congressional authorization to use force which the president has, is equivalent to a declaration of war, constitutionally.  If there‘s a declaration of war, you can go—you know, for 15 days, Mr. President, you can do this. 

You don‘t have to ask anybody.  You don‘t just seek any wire tap.  For 15 days you can do this.  So this idea he has that technology‘s changed.  That‘s a bunch of malarkey.  Technology has changed, but you have plenty of time. 

You heard Colin Powell.  Colin Powell, I saw in an interview today, say no, there‘s plenty of time in his opinion. 

MITCHELL:  You‘re a lawyer, as we said.  What about the president‘s insistence that the war authorization post-9/11 gives him this authority and also article II of The Constitution?  Commander In Chief. 

BIDEN:  I think it‘s bizarre.  It‘s a bizarre assertion.  The last one that I heard as crazy as that was his father‘s assertion in Gulf I, the first Gulf War, when he initially argued that the only reason Congress is involved in a declaration of war is if the president won‘t go to war.  He backed off of that. 

This is an unusual assertion. 

MITCHELL:  What about Senator Allen saying that nobody‘s been hurt? 

No harm done. 

BIDEN:  Well God bless Senator Allen.  I imagine those people who have had their conversations tapped illegally, allegedly illegally, are really just happy about that.  They weren‘t hurt.  So it‘s okay that somebody has a file somewhere out there.  Look, the fact is Andrea, we don‘t know how extensive this is.  We have no idea.

The attorney general said, you know, the congress doesn‘t know what our authority is.  We haven‘t laid it out to them and, secondly, they don‘t know what we‘ve been doing.  That‘s true.  We don‘t know either.  That‘s why there‘s this urgency to have hearings. 

But these broad assertions, overwhelming assertions, are incredibly unusual for a president to make.  We didn‘t elect, you know, an executive that says the courts and the congress don‘t matter. 

I heard part of your discussion.  I think it can be a lot different if in his exercise of his judgment over the last four years, he‘s turned out to be right.  But look at what the exercise of the judgment did.  With regard to the treatment of prisoners, with regard to Abu Ghraib, with regard to Guantanamo, with regard to abiding by international treaties. 

The wisdom of their judgment has been lacking, lacking in the extreme.  So you have all these things, a confluence of all these events when the bottom line is no one has shown me, and I just wrote an extensive memorandum for all my Democratic colleagues that‘s being distributed as we speak, after four days of extensive research on this, having been there when we wrote this law, what I haven‘t been shown is, show me something. 

MITCHELL:  Well, hang on to that thought, Senator Biden.  We‘re going

to take a quick break.  We‘ll be right back with Joe Biden.  You‘re

watching HARDBALL on MSNBC

(COMMERCIAL BREAK)

MITCHELL:  We‘re back with Senator Joe Biden, ranking Democrat on the Foreign Relations Committee.  Senator, George Allen said a few minutes ago, that he thought there would be some resolution on The Patriot Act.  The attempt to break the filibuster failed today. 

Do you think there‘s going to be some kind of compromise?  Are you willing to grant a vote on The Patriot Act and then get the fixes later on, which we‘re told Arlen Specter is proposing.

BIDEN:  I think the way it‘ll work is there‘s about 13 or 14 measures in the act which we all agree on and we‘re all ready to go ahead and extend those for the next four years which the act calls for. 

There are three provisions in the act, I think—don‘t hold me to the actual number—where there‘s contention.  We‘re willing to extend them the next six months and revisit them within that six months.  That‘s my guess is what the nature of the agreement will be. 

MITCHELL:  So the original proposal was three months and the White House said no.  You‘re now willing to come up with six months?

BIDEN:  Oh, I‘m willing to come up with a longer time than that.  Quite frankly, the differences between what we passed out in the Senate and what the House passed are real, but they‘re not nearly as stark as they were before they went to conference. 

So I‘m prepared, me, personally, I‘m prepared to give six months.  I don‘t think it‘s three or six matters.  What matters is that we resolve the differences on the three issues that are still outstanding. 

MITCHELL:  Are Democrats being hurt politically by being portrayed by the White House as killing The Patriot Act, holding out on The Patriot Act, being against the war on trier. 

BIDEN: I don‘t think so.  Time will tell that, but I think the president‘s being hurt because everyone knows, because you are all are saying it.  We‘re willing to extend The Patriot Act, at least three months.  Now I think the majority is willing to extend it six months.

Why would the president kill something that can be extended, other than for politic reasons.  What possible reason would there be to do that, other than a political reason to try to risk American security in an attempt to embarrass Democrats.  I don‘t get that.  I don‘t think he‘ll do that.

MITCHELL:  We have less than a minute left and I have a big question.  If you could briefly tell me, how worried are you, about the success, initially the success, of religious parties in the Iraq election. 

BIDEN:  I‘m very concerned.  I‘ve talking about it to you and others for the last six months.  That‘s what our ambassador‘s saying, that‘s why we must get involved quickly with the international community to bring pressure as Kissinger, and myself, and Schultz and others have been calling for, in order to have a non-sectarian minister of defense and minister of interior and a non-sectarian constitution. 

If we don‘t, I‘m worried about a civil war and as I said, all the king‘s horses and all the king‘s men will not hold Iraq together if that happens. 

MITCHELL:  Thank you, Senator Joe Biden.  Merry Christmas.  Happy New Year.  I hope you get out of town. 

BIDEN:  Thank you.  So do we, for the sake of America. 

MITCHELL:  Get that Senate home. 

BIDEN:  That‘s right, thank you very much. 

MITCHELL:  Up next.  Inside the N.S.A.‘s domestic surveillance program.  How is it done? 

And would counter-terrorism efforts have jeopardized by getting court approval first.  You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

(STOCK MARKET REPORT)

MITCHELL:  Welcome back to HARDBALL.  I‘m Andrea Mitchell in for Chris Matthews.  The daily drumbeat of revelations continued today, in the story of the administration surveillance program.  It‘s complicated, involving warrants and standards for different government agencies.

But a federal judge simplified his feelings about the president‘s bypass of the judicial branch by resigning.  HARDBALL correspondent David Shuster reports.

(BEGIN VIDEOTAPE)

DAVID SHUSTER, HARDBALL CORRESPONDENT (voice-over):  Courthouse officials confirm U.S. District Judge James Robertson resigned late Monday from the secret Foreign Intelligence Surveillance Court.  Colleagues say Robertson learned the president‘s warrant-less wire taps from news reports and is convinced the White House program has tainted the court‘s work. 

The development comes in the midst of conflicting statements from the Bush administration.

ALBERTO GONZALES, ATTORNEY GENERAL:  This is not a program of domestic spying, of calls within the United States.  In the exercise of these authorities, one party to the call has to be outside the United States.

SHUSTER:  But “The New York Times” reported today the National Security Agency intercepted some calls that were purely domestic.  Last week, when the “Times” first revealed the warrant-less program, the White House said confirming the program would harm national security.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  It‘s the policy of this government.  It‘s just not going to do it.  And the reason why is that because it would compromise our ability to protect the people.

SHUSTER:  But, less than 24 hours later...

BUSH:  I authorized the National Security Agency, consistent with U.S.  law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.

SHUSTER:  ... the White House said it regularly kept lawmakers in the loop.

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY:  Congress was consulted and briefed on this matter, going back to 2001.

SHUSTER:  But, the foreign co-chairman of the intelligence committee told HARDBALL...

BOB GRAHAM (D), FORMER INTELLIGENCE COMMITTEE CHAIRMAN:  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.

SHUSTER:  ... then, there is this statement President Bush made last year during the presidential campaign.

BUSH:  Any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order.  Nothing has changed, by the way.

SHUSTER:  The White House says there is no contradiction there, because the president was talking about the Patriot Act.  The Foreign Service Intelligence Act enacted in 1978 make it illegal for the government to spy on American citizens in the United States, without first getting approval from the special FISA court. 

Application standards are different for the National Security Agency, the Justice Department and the FBI, but in general agency lawyers will make a court application through documents or in person.  An answer from the court usually comes within hours. 

The intercepts, that are conducted with the help of sophisticated satellites and detection equipment based at facilities around the world.  The information is then fed and examined by analysts at the National Security Agency, just outside Washington.  Three years ago, the president went to NSA headquarters.

BUSH:  These people are putting in long, long hours. 

SHUSTER:  Members of Congress question why the president would sidestep the FISA court, given that records show the court grants 99 percent of the requests and given that in the name of speed, warrants can be obtained up to three days after surveillance has started. 

But legal experts have some theories.  First, if the court had rejected a White House request, the president and his team would have had to deliberately disregard a court decision if the president still wanted to go forward.

Secondly, there has been occasions where bureaucrats at the Justice Department of FBI blocked a FISA application.  Several weeks before the 9/11 attacks, FBI agent Colleen Rowley wanted to request the FISA warrant so she could examine the laptop of alleged terrorist, Zacarias Moussaoui.  FBI headquarters denied the request, believing Rowley‘s FISA application would fall short of court standards.

(END VIDEOTAPE)

SHUSTER:  Members of Congress, though, say issues of bureaucracy do not justify possibly trampling the rule of law.  And with lawmakers and both parties calling for hearings on the president‘s spy program, one Democrat says the first witness should be James Robertson, the federal judge who resigned this week in disgust.  I‘m David Shuster for HARDBALL in Washington. 

MITCHELL:  Thank you, David Shuster.  Joining me now is Bob Baer, a former CIA field officer whose book provided the inspiration for the George Clooney movie, “Syriana.”  And Frank Gaffney, a former assistant secretary of defense, who‘s also the author of “War Footing: 10 steps America must take to prevail in the war for the free world.”  Welcome, both.

First, to you, Bob.  You‘ve been out in the field.  Do you believe that court orders are necessary, useful or are they an obstruction when you‘re trying to catch terrorists?

BOB BAER, FORMER CIA FIELD OFFICER:  Well, we‘ve always had the authority to listen in on phones.  It‘s sort of like surfing the Web, where you‘re hitting a couple of phone numbers or connected phone numbers.  And if you do get a live phone number you need to listen to, it‘s very easy to get a FISA warrant.  And that‘s always used to be the rule, at least when I was in the CIA up until 1998.  So this is a new policy, definitely.

MITCHELL:  Do you feel that the court—going to court, taking the time to go to court or doing it retroactively, 72 hours later, ties the hands of the war on terror with the administration trying to handle all of this new technology?

BAER:  When it comes to National Security Agency?  No.  The only problems we ever had with FISA is when the applications were filled out incorrectly and the court sent them back.  It was usually the fault of the bureaucracy, not the fault of the court.  Generally, intercepts in the war on terrorism are marginally useful.  As we know now, national security agency intercepted phone calls from Yemen to hijackers in San Diego but they‘ve made no sense at all.  The National Security Agency didn‘t know what to do with them.  They didn‘t see them a threat.  You only have a marginal benefit by completely opening up authority to monitor everybody‘s phone calls. 

MITCHELL:  Well, isn‘t that the problem, that you‘ve got billions of pieces of information, Frank Gaffney, coming in and we still don‘t have enough analysts and interpreters to really sift through this stuff and know whether you‘ve got something hot. 

FRANK GAFFNEY, FMR. ASSIST. SECRETARY OF DEFENSE:  I think that is a problem and that‘s one of the reasons why the impetus behind this particular program, evidently, was we had some indicators. 

We had al Qaeda operatives, whose hard drives or cell phones or phone books or other materials were providing us some evidence that there were people inside the United States they were in touch with or they were interested in being in touch with. 

(CROSSTALK)

MITCHELL:  ... who was the number three in al Qaeda. 

GAFFNEY:  They could just be, you know, cannon fodder.  But if cannon fodder strapped with explosives and walks into a stadium or a movie theater or a mall, it can do a lot of damage. 

MITCHELL:  So what‘s the harm about going court?

GAFFNEY:  Well, the harm could be—could be and evidently, the administration was concerned that it would be in some cases, you wouldn‘t get the information you needed in time or you wouldn‘t be able to pursue it as you needed to do. 

I don‘t know all the details and I don‘t think any of us do apart from evidently, a small number of people, one of whom evidently decided to leak it.  But I think the bottom line of this is think of it the other way around. 

Think of what would have happened if there were another terrible 9/11-style attack and the 9/11-style commission that investigated that afterwards found that we had access to the phone numbers of people who were perpetrating it and we decided not to follow them to find out what they were up to try to prevent them from attacking. 

That, I think, would have created a far greater uproar and I think that‘s what was on the mind of the president and his colleagues in making this unusual but necessary step. 

MITCHELL:  Bob Baer, does he have a point? 

BAER:  Well, the problem is, do you trust your government?  Back in the 60s and the 70s during the Vietnam War, you know, the FBI and the CIA opening letters, monitoring telephones and it was used for purely political reasons. 

If this were left in the hands of the people with some sort of judicial oversight, whether it‘s a FISA or another way, you‘d feel better about it.  But the way it‘s being done right now, you can apparently listen to anybody‘s phone with a remote connection, in particular, journalists.  I mean, it‘s amazing how many journalists are calling people—Qaeda (ph) connected.  Are they now subject to teletaps?  And that‘s what has most Americans upset. 

MITCHELL:  Do you have any indication that journalists are being eavesdropped upon? 

BAER:  I‘ve seen it happen, yes.  Not usually intentionally, but if you‘re going to track a terrorist or somebody with one of these organizations, the journalists are getting close to them, you would follow the journalist.  But how ... 

GAFFNEY:  No, but Bob, I think if you were doing the field operations, you would almost certainly want that journalist, if you could figure this trail out, to help lead you to where the terrorist is and put him out.  That would certainly be, I think part of field—the trade craft of this. 

MITCHELL:  Bob, would you have hesitated to follow a reporter if you thought the reporter would lead you to Osama bin Laden? 

BAER:  Well, we could have.  John Miller from ABC went to Iraq.  Peter Bergen did for CNN.  They met bin Laden and we could have, you know, fired a hellfire down the signal and killed both the journalist and bin Laden.  Of course you have to have ...

GAFFNEY:  Would have waited till the journalist got out of the way.

MITCHELL:  Or not.

(CROSSTALK)

BAER:  Depends from what network. 

MITCHELL:  But Bob, seriously, do you really think—how do you think people in the field feel about all this because the “New York Times” reported that its initial sources of the James Risen story included intelligence officers who were very concerned about this program.  They felt it went too far. 

BAER:  They‘re upset.  There‘s a revolt in the intelligence community against torture, against tapping American citizens‘ phones. 

MITCHELL:  Now, wait a second.  The White House says we don‘t torture. 

BAER:  Well, we outsource it to countries like Syria and Egypt.  You know, call it what you will.  Yes, people are upset.  They‘re upset in the intelligence community.  You see a lot of people leaving.  I hear a lot of complaints myself, and people in the CIA that are involved in interrogations are, you know, running for their lawyers.   

MITCHELL:  We‘ll be back with Bob Baer and Frank Gaffney.  And the remainder—and a reminder, I should say—for the best political debate online, just go to hardblogger.msnbc.com, our political blog Web site. 

And now can you download podcasts of HARDBALL on iTunes, the Apple music and video store.  We‘ll be right back. 

(COMMERCIAL BREAK)

MITCHELL:  We‘re back with former CIA field officer Bob Baer, played by George Clooney in the movie “Syriana,” and Frank Gaffney, former assistant secretary of defense who plays himself ...

(CROSSTALK)

MITCHELL:  ... in life and on film.  Frank, why do you think that the president has not overstepped his bounds? 

GAFFNEY:  I think there are probably several different reasons.  The president and the attorney general have given a number of them recently.  The one I found particularly compelling was the finding that Justice O‘Connor made in a different case involving the incarceration of an American citizen, and concluding for the Supreme Court that that was, in fact, something the president could do under the authorities given him in the aftermath of 9/11 by the congress to use such techniques as are necessary to prosecute this war. 

If you can confine American citizens, I think it‘s entirely possible that you can monitor the communications you have reason to believe are tied to al-Qaeda who may not be citizens but who may, nonetheless, be in this country. 

Again, I come back to this point, I think most Americans, using common sense, will say, if you‘ve got this kind of indicator that there‘s a problem, that there could be people operating in our country, tied to these terrorists and you‘re not using every instrument at your disposal to try and find them and neutralize them, then you‘re not doing your job.  And I think that‘s what, again, the president was principally motivated by.   

MITCHELL:  Bob, do the rank-and-file guys in the intelligence community feel that their hands are being tied behind their back. 

BAER:  Generally no.  We‘ve never had a problem with either budgets or legal authority.  The rules used to be simply that you don‘t spy on American citizens, which pretty much left the field open to go after who we wanted to.  Any failings we‘re our own. 

GAFFNEY:  We‘ve got American citizens who may be part of the threat in the future, and that‘s a danger I thought “Syriana” sort of suggested.  You‘ve got people who are inside countries and may be beyond suspicion under ordinary circumstances.  But are not, necessarily, thanks to particularly Saudi paid-for recruitment of what I call Islamo-fascists here and abroad.

BAER: Frank, you‘re absolutely right.  This is where The Patriot Act is inadequate because it doesn‘t provide for following foreigners in this country.  We don‘t know who‘s in this country.

When you register at a hotel, we don‘t know who.  If people overstay when they‘re coming across the border.  We never address that.  But the really problem with the intelligence community is breaking down these walls. 

What do you do when you have raw intelligence from the National Security Agency which may not involve an American citizen.  It should be going to the FBI, and it didn‘t on 9/11.

MITCHELL:  Hardly reassuring.  When we return, we thank you.  Thank you Bob Baer and Frank Gaffney.

When we return, presidential historian, Michael Beschloss on how presidents have uses executive power and how that power has evolved over the years.

This is HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MITCHELL:  Welcome back to HARDBALL.  The NSA domestic spying story has raised new questions about the extent of presidential powers.  The vice president says they were eroded in the Vietnam and Watergate era and that it‘s time for the pendulum to swing back. 

Michael Beschloss is NBC News presidential historian and a good friend of this program and all of us, welcome, Michael. 

MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIAN:  Thank you, Andrea. 

MITCHELL:  The erosion of presidential authority, Dick Cheney spoke on the flight home, about how it is important.  He was hardly defensive.  He was very assertive about the importance of restoring presidential authority.  Do you think that this president doesn‘t have enough power? 

Well, I think he and Vice President Cheney thought that at the beginning of this administration.  This isn‘t something new for Dick Cheney to say.  As you know, he said it on “Meet the Press” earlier in this administration.  He felt that things had gone too far. 

MITCHELL:  Perhaps some of us weren‘t listening.

BESCHLOSS:  Maybe not.  Sometimes political leaders actually mean what they say.  But the interesting thing is that people are talking a lot about how President Bush has made a great effort to strengthen the presidency after 9/11.  But that really went on from the very beginning. 

Remember after 2000, that very narrow election, lots of people said you have this very narrow victory, appoint Democrats to the cabinet, go to the center.  He did exactly the opposite from the very beginning.  He wanted to be a strong president. 

MITCHELL:  And in fact, if I‘m not in incorrect, Dick Cheney‘s assertion of presidential authority regarding his energy task force preceded 9/11.  So they were already moving down that road.  So this is philosophical with them. 

BESCHLOSS:  It is, in creating precedence.  One reason for this is that Dick Cheney, as you well, was Gerald‘s Ford‘s chief of staff.  So his first experience at The White House was really at the nadir of presidential power, just after Watergate.

MITCHELL:  An unelected President.

Do you think that the American public is going to accept this a assertion of presidential authority because of the terror threat.  This is a new world, post-9/11, or are they giving us a false choice.  Either be safe and permit this kind of surveillance or you are risking another attack. 

BESCHLOSS:  I think here‘s one of these cases where we‘ll actually know a lot more a month from now.  A lot of this has a yet to be fleshed in, and sometimes, history actually does have some benefit.  Because if we were talking, for instance, in 1940 or 1941 about Franklin Roosevelt. 

We now know that in retrospect, Roosevelt was coming close to breaking the neutrality laws by trying to aid the British help us win World War II.  In retrospect, historians are probably glad that he did that.  If we were talking about this at the time, we would have had a very different view. 

MITCHELL:  John McCain‘s view has been that you should break rules if you have to, for instance, torture situations.  If you believe that an attack is immanent.  Break the rule then go fess up, seek the waiver, come public and people will support you. 

BESCHLOSS:  He also said suffer the consequences if you are a president who does that and people don‘t like it.  Another ingredient here has been that for most of the last four years, the Congress has been in Republican hands. 

When you have a president who has very reliable leaders in Congress, he tends to do things sometimes that he might not do if you have a very stiff opposition. 

MITCHELL:  But in this case, even though we know they were briefed, it was only a small group and as J. Rockefeller showed, he had no way to object because he couldn‘t tell staff or anyone else. 

BESCHLOSS:  That‘s right.  And the fascinating question, why did they do it this way rather than going through the process under FISA.  In a way, it‘s a throw back. 

In the 1950‘s, before there was a formal intelligence oversight process, Alan Dulles, the director of the CIA would go to congressional leaders just like this.  He used to say, I‘ll tell Dick Russell, the head of Armed Services everything I‘m doing at the CIA.  That is, he winked, if Dick wants to know. 

MITCHELL:  That‘s the way it used to be.  No longer.  Thank you, Michael Beschloss. 

And join us again tomorrow night at 5:00 and 7:00 eastern for more HARDBALL.  Our guests include New York Times columnist Maureen Dowd, author of the new book “Are Men Necessary?”  I say yes.

And on Friday, a very special edition of HARDBALL, the top political plays of 2005. 

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

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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