Wednesday night the Senate reauthorized the Patriot Act for six months, with the House likely to take up the issue on Thursday. Is this an effective tool in the war on Terror? Is the Administration's use of secret wiretaps also a viable tool?
Senator Joseph Biden (D-DE), just back from Iraq, spoke with 'Hardball' guest host Andrea Mitchell on these divisive issues.
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': We‘re joined 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. 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.
SEN. JOSEPH BIDEN (D-DE), FOREIGN RELATIONS COMMITTEE: 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: on this program, 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: 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.
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