President Bush maintains that he has the legal authority to approve domestic spying, including the latest revelation that some of the surveillance included U.S.-to-U.S calls. 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.
Senator George Allen, Republican from Virginia and a member of the Foreign Relations Committee, defended this position when he spoke with 'Hardball' guest host Andrea Mitchell.
To read an excerpt from their conversation, continue to the text below. To watch the video, click on the "Launch" button to the right.
ANDREA MITCHELL; GUEST HOST 'HARDBALL': 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?
SEN. GEORGE ALLEN ®, VIRGINIA: 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 suggesting 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 flexibility, 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 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.
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