Russert allowed Rice to deflect eavesdropping questions

››› ››› JEREMY SCHULMAN

On Meet the Press, host Tim Russert allowed Secretary of State Condoleezza Rice to repeatedly deflect his questions about the supposed legal basis for the domestic eavesdropping authorized by President Bush.

On the December 18 broadcast of NBC News' Meet the Press, host Tim Russert allowed Secretary of State Condoleezza Rice to repeatedly deflect his questions about the supposed legal basis for the domestic eavesdropping program authorized by President Bush shortly after the September 11, 2001, terrorist attacks. As Russert noted, the Foreign Intelligence Surveillance Act (FISA) "is very clear that a person is guilty of an offense unless they get a court order before seeking to wiretap an American citizen."

During the interview, Rice asserted that in authorizing the National Security Agency to perform domestic electronic eavesdropping without a warrant, "[t]he president is acting under his constitutional authority, under statutory authority." Rice did not elaborate on this constitutional and statutory authority and instead told Russert three times: "I'm not a lawyer." Though Russert pointed out that Rice was then serving as national security adviser, and Rice acknowledged she was aware of the program at the time it was authorized, Russert did not ask why she was apparently unable to explain the administration's purported legal basis for undertaking the domestic surveillance. Nor did Russert ask if she sought assurances of the legality of undertaking the domestic surveillance, whether she sought from lawyers advising the White House specific citations of legal authority to undertake this surveillance, and if she did not, why not.

The New York Times revealed Bush's authorization of the domestic eavesdropping program in a December 16 article. The Times reported that according to "government officials," Bush directed the National Security Agency to monitor "the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible 'dirty numbers' linked to Al Qaeda." The Times noted that FISA "require[s] search warrants, approved by the secret F.I.S.A. court, for wiretaps in national security cases." In his December 17 radio address, Bush acknowledged authorizing the program.

On Meet the Press, Russert asked Rice: "You were the national security adviser when the president made this decision. Were you aware of it?" Rice responded, "Yes." Russert never followed up by asking Rice whether, as national security adviser, she had sought to understand the legal justifications for the program.

Instead, Russert allowed Rice to repeatedly insist that Bush "has acted within his constitutional authority and within statutory authority" while avoiding specific explanations by saying, "I'm not a lawyer."

For example, Russert asked Rice: "What is the legal authority? What is the constitutional authority for the president to eavesdrop on American citizens without getting court approval?" Rice responded: "The president is acting under his constitutional authority, under statutory authority." She then insisted, "I'm not a lawyer, but the president has gone to great lengths to make certain that he is both living under his obligations to protect Americans from another attack but also to protect their civil liberties." Without elaborating what she meant by "constitutional authority," Rice added that "the president is drawing on his constitutional authorities to protect the country."

Russert noted that "[t]he law is very clear that a person is guilty of an offense unless they get a court order before seeking to wiretap an American citizen" and asked Rice why the president did not "get a court order." Rice responded: "The FISA is indeed an important source of that authority, and in fact, the administration actively uses FISA," adding that "the president has drawn on additional authorities that he has under the Constitution and under other statutes." When Russert asked Rice, "What are the other authorities?," Rice again responded: "I'm not a lawyer, but the president has constitutional authority and he has statutory authorities."

Following Rice's acknowledgement that she knew about the program when it was authorized, Russert asked: "And what Democrats and Republicans in Congress are asking, Madame Secretary, is what is the authority that you keep citing? What law, what statute? Where in the Constitution does it say the president can eavesdrop, wiretap American citizens without a court order?" Rice insisted that Bush "has acted within his constitutional authority and within statutory authority" before once again explaining, "Now, I am not a lawyer."

From the December 18 broadcast of NBC News' Meet the Press:

RUSSERT: The president yesterday confirmed that this operation was under way for the last several years. What is the legal authority? What is the constitutional authority for the president to eavesdrop on American citizens without getting court approval?

RICE: Tim, first of all, the president has authorized -- and it's important to talk about what he's actually authorized. He's authorized the National Security Agency to collect information about the activities of a limited number of people with ties to Al Qaeda so that there is not a seam between the territory of the United States and the territory abroad. One of the most compelling outcomes of the 9-11 Commission was that a seam had developed. Our intelligence agencies looked out, our law enforcement agencies looked in, and people could -- terrorists could exploit the seam between them. So the president is determined that he will have the ability to make certain that that seam is not there, that the communications between people, a limited number of people with Al Qaeda links here, and conversations with terrorist activities outside will be understood so that we can detect and thereby prevent terrorist attacks.

The president is acting under his constitutional authority, under statutory authority. I'm not a lawyer, but the president has gone to great lengths to make certain that he is both living under his obligations to protect Americans from another attack but also to protect their civil liberties. And that's why this program is very carefully controlled. It has to be re-authorized every 45 days. People are specially trained to participate in it, and it has been briefed to leadership of the Congress and including the leadership of the intelligence committees. So in a time when the war on terrorism is not just one in which people carry on activities outside the country but also activities inside the country, the president is drawing on his constitutional authorities to protect the country.

RUSSERT: The law is very clear that a person is guilty of an offense unless they get a court order before seeking to wiretap an American citizen. Why did the president not get a court order?

RICE: The FISA is indeed an important source of that authority, and in fact, the administration actively uses FISA. But FISA, in 1970 --

RUSSERT: The Foreign Intelligence Surveillance Act.

RICE: The Foreign Intelligence Surveillance Act, exactly. FISA, which came out of 1978 at a time when the principal concern was, frankly, the activities of people on behalf of foreign governments, rather stable targets, very different from the kind of urgency of detection and thereby protection of a country that is needed today. And so the president has drawn on additional authorities that he has under the Constitution and under other statutes.

RUSSERT: What are the other authorities?

RICE: Tim, again, I'm not a lawyer, but the president has constitutional authority and he has statutory authorities.

RUSSERT: But no one's explained that. No one has said what is -- in fact, in 1972 --

RICE: Tim --

RUSSERT: -- President Nixon tried to wiretap American citizens, and the Supreme Court ruled he violated the Fourth Amendment rights of Americans.

RICE: Tim, let's remember that we are talking about the ability to collect information on the geographic territory that is the United States. Some people are American citizens; others are not. What the president wants to prevent is the use of American territory as a safe haven for communications between terrorists operating here or people with terrorist links operating here and people operating outside of the country.

You know, I sat through the 9-11 Commission, and in the 9-11 Commission, one of the biggest and most compelling concerns was that we had to understand the link between what terrorists were doing abroad and what terrorists were doing here. Prior to September 11, there were people sitting inside the United States -- the president talked about two of them, Mitar and Hamzi, who were operating inside the United States, communicating outside of the United States. That's a scene that you cannot allow to exist in a time when if somebody now commits a crime, where this is not law enforcement of the kind where people commit a crime, you then investigate that crime and bring them to justice. This is a case where if people commit the crime, then thousands die. And that's what we learned on September 11. And so the president under his authorities -- he is commander in chief; he needs to protect this country -- has authorized this program. But he is also very concerned about civil liberties, and it is why there are so many safeguards attached to this program and why, frankly, several members of Congress were briefed.

[...]

RUSSERT: You were the national security adviser when the president made this decision. Were you aware of it?

RICE: Yes.

RUSSERT: Will you go before Congress to testify if called?

RICE: Tim, I was aware of it, and I'm not going to talk about my role as national security adviser, which, of course, is not a constitutionally confirmed role, and I'm sure that there will be issues there. But my concerns were the president's concerns at the time, that he'd be able to use his authorities to detect and thereby protect the country from a terrorist attack. We have to remember that the president looks every morning at many, many, many pieces of intelligence about coming attacks -- frankly, almost none of them specific enough to act on. And so it is the president's obligation within the law and within his constitutional authority to get the information that he needs to detect an attack and to act against it before thousands of people die.

RUSSERT: Senator [Russell] Feingold, the Democrat from Wisconsin said, "I think [President Bush] probably did [break the law], and I think almost every senator of both parties thinks he probably did. ... The president doesn't get to decide to make up the laws, and to start wiretapping people just because he thinks it's a good idea. ...I think he may have broken the law."

And what Democrats and Republicans in Congress are asking, Madame Secretary, is what is the authority that you keep citing? What law, what statute? Where in the Constitution does it say the president can eavesdrop, wiretap American citizens without a court order?

RICE: Tim, the president has authorities under FISA, which we are using and using actively. He also has constitutional authorities that derive from his role as commander in chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority.

Now, I am not a lawyer, and I am certain that the attorney general will address a lot of these questions, but the fact is that the president has an obligation. He took an oath to protect and defend the Constitution of the United States.

Posted In
Justice & Civil Liberties, Domestic Spying
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