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INSIGHT

U.S. Wiretapping Controversy

Aired December 23, 2005 - 18:00:00   ET

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


(BEGIN VIDEO CLIP)
GEORGE W. BUSH, U.S. PRESIDENT: We know that a two-minute phone conversation between somebody linked to al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives. To save American lives, we must be able to act fast and to detect these conversations so we can prevent new attacks.

JONATHAN MANN, CNN HOST: The president, the puzzle palace and the American people. George Bush says a secret wiretapping program is crucial to protecting the United States against terror. A sudden spotlight on an American agency that may be listening in on you.

(END VIDEO CLIP)

Hello and welcome.

In the early years of the 20th century, the U.S. secretary of state closed down an office in this department that intercepted other countries' diplomatic messages. He famously explained at the time that gentlemen don't read other gentlemen's mail. Well, the least you can say is that the United States doesn't feel like it's fighting gentlemen in the war on terror and it will open the mail and listen in on the phone calls it feels it has to.

In the 21st century, that's the job of the National Security Agency, which is the largest spy agency in the United States and possibly the largest in the world. Its primary task is to eavesdrop on conversations around the globe. It was thought that it wouldn't do that to Americans except with a court's approval, but things have changed.

On our program today, listening in in the land of the free. We begin with the latest on the president's remarks on the controversy and CNN's Suzanne Malveaux.

(BEGIN VIDEOTAPE)

SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT (voice-over): President Bush defended his top secret domestic wiretapping program, insisting that eavesdropping on callers in the United States to possible terrorists overseas is perfectly legal.

BUSH: I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.

MALVEAUX: Shortly after the September 11 attacks, the president said he green-lighted a government program to wiretap calls from within the United States of suspected terrorists without obtaining a warrant from a special court, as required by law. The president says going through the normal channels to get permission for wiretapping under some circumstances is too slow.

BUSH: To save American lives, we must be able to act fast and to detect these conversations so we can prevent new attacks.

MALVEAUX: The president says as commander-in-chief during wartime, both the U.S. Constitution and Congress' authorization to go after al Qaeda give him the authority to bypass normal channels. But some constitutional scholars say the president is on shaky legal ground.

THOMAS GOLDSTEIN, SUPREME COURT LEGAL ANALYST: The president is on thin legal ice. No one knows for sure whether this was constitutional, but the Supreme Court has said that the president actually doesn't have the power to order domestic surveillance when you would ordinarily have to go a court under the Fourth Amendment of the Constitution which protects the right to privacy.

(END VIDEOTAPE)

MANN: Suzanne Malveaux reporting.

The president's explanation of all of this comes in the middle of the political battle over other anti-terror measures. In the days after September 11, the U.S. Congress passed a sweeping law giving the government broad new powers in what was dubbed the U.S.A. Patriot Act. Several aspects of it were so controversial that they were given sunset provision, specifying that they would expire unless explicitly renewed.

This week, the Democrats and a handful of Republicans stopped that renewal from happening. Now they want to know how the president sidestepped the law that authorizes wiretaps, the Foreign Intelligence Surveillance Act.

CNN's Ed Henry has the latest from Capitol Hill.

(BEGIN VIDEOTAPE)

SENATOR JACK REED (D-RI): He is the president, not a king.

ED HENRY, CNN CORRESPONDENT (voice-over): Democrats rejected claims by Attorney General Alberto Gonzales that Congress OK'ed domestic spying four years ago by giving the president broad power to wage the war in Afghanistan.

ALBERTO GONZALES, U.S. ATTNY. GEN.: The authorization to use force, which was passed by the Congress following the attacks on September 11, constitutes additional authorization for the president to engage in this kind of signals intelligence.

SENATOR RUSS FEINGOLD (D-WI): I think it's wrong. I think he's wrong on the law.

REED: The president does not have a leg to stand on, legally.

HENRY: Democrats also dispute the president's contention that at classified briefings that a handful of lawmakers received constituted Congressional oversight.

FEINGOLD: This was top secret classified information that could not be discussed, could not be released, could not be even shared with other members of the United States Congress. So that is not an effective check on any type of presidential action.

HENRY: One leader who was briefed on the program, Nancy Pelosi, has written a letter to Democratic colleagues contending, "When I was advised of President Bush's decision to authorize these activities, I expressed my strong concerns verbally, and in a classified letter to the administration."

(on camera): In a dramatic development, Democratic Senator J. Rockefeller has just released a handwritten letter that he sent to Vice President Cheney on July 17, 2003, the day Rockefeller was briefed about the spy program. Rockefeller says he's releasing the letter, in which he expressed concerns about the program, because he believes the White House is not misrepresenting the facts about what lawmakers were told. And he wants a full investigation.

Ed Henry, CNN, Capitol Hill.

(END VIDEOTAPE)

MANN: One thing that's worth keeping in mind in all of this is that the controversy isn't over the U.S. government's right to eavesdrop on conversations around the world. It does that as a matter of routine, intercepting and decoding whatever phone calls, emails and radio transmissions it wants to, by some estimates, billions of conversations every year. The new debate here is only about whether Americans should be subject to that kind of surveillance without a court's approval.

If the court does approve or the president orders it on his own, how do they do it? Brian Todd has this look.

(BEGIN VIDEOTAPE)

BRIAN TODD, CNN CORRESPONDENT (voice-over): Experts say, any time the National Security Agency decides to eavesdrop, the operation is highly sophisticated.

GEORGE BAUREIS, FMR. FBI COUNTER-TERROR AGENT: It truly is the cream of the crop of technology in terms of the capability to listen to anything, anywhere, at any time.

TODD: Former FBI Counter-terror Agent George Baureis worked extensively with the NSA for years. Baureis and other experts say there are essentially two ways to monitor a suspect's communications. One is the more traditional method of planting listening devices.

BAUREIS: The other type of eavesdropping would be basically intercepts that are coming from open airspace that are going through satellite communications, or actually targeting of databases.

TODD: In this age, cell phones and other telephone signals can be monitored by satellites. A former NSA employee says the networks that operate cell phones and computers have built capabilities into them that allow intelligence agencies to monitor calls and emails.

The NSA can use one of its sophisticated satellites to pick up a call, send the signal down to one of the various NSA listening posts around the world.

But James Bamford, author of two definitive books on the NSA, says communications can also be monitored using microwave frequencies or tapping undersea cables, then, an NSA analyst takes over.

JAMES BAMFORD, AUTHOR: An NSA analyst would eavesdrop or listen to the communications, write up a report, and then send it to whoever asked for the information, whether CIA, FBI, White House, Pentagon, whoever.

TODD: The analysts, who can be linguists or code breakers, run signals through computers. But often, as one NSA linguist showed our David Ensor a few years ago, getting right information depends on human intuition.

EVERETTE JORDAN, NSA LINGUIST: You have to listen for irony. You have to listen for sarcasm, for tension. You have to listen for rhetorical statements being made. You also have to listen for humor.

TODD (on camera): We asked one expert how important is it for the method to be kept so secret. He cited one break as an example: the damage done when it was made public that intelligence agencies were monitoring Osama bin Laden's cell phone calls.

Brian Todd, CNN, Washington.

(END VIDEOTAPE)

MANN: We take a break now. When we come back, does that kind of spying on Americans violate U.S. law? We'll look at the case for and against secret surveillance.

Stay with us.

(BEGIN VIDEO CLIP)

SENATOR ROBERT BYRD (D-WV): The practice of domestic spying on citizens should stop immediately. Oversight hearings need to be conducted. Judicial action may be in order. We need, finally, to be given answers to our questions. Where is the constitutional and statutory authority for spying on American citizens?

CONDOLEEZZA RICE, U.S. SECY. OF STATE: He did it to protect the country, because these days, after September 11, we recognized and he recognized, as the one with real responsibility for protecting the country, that if you let people commit the crime, then thousands of people die. So you have to detect it before it happens.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RICHARD NIXON, FMR. U.S. PRESIDENT: To leave office before my term is completed is abhorrent to every instinct in my body. But as president, I must put the interest of America first.

(END VIDEO CLIP)

MANN: The biggest American political scandal of recent decades is fading into the past, but it was a domestic spying operation that toppled Richard Nixon. It was, of course, Watergate, an eavesdropping operation that was exposed, leading to the discovery of other political spying and sabotage organized for purely partisan reasons: to help the president win an election. And that's the crucial difference. No one suggested the spying was to help win a war.

Welcome back.

The debate in Washington now is a narrow legal question. Does the president have the authority to bypass the courts to spy on American citizens?

Brian Todd has this look.

(BEGIN VIDEOTAPE)

TODD (voice-over): The president defending his legal right to secretly wiretap Americans without court orders.

BUSH: The legal authority is derived from the Constitution as well as the authorization of force by the United States Congress.

TODD: Mr. Bush, citing Article II of the Constitution, granting him power as commander-in-chief of the armed forces and Congress's joint resolution right after September 11 authorizing him to use all necessary and appropriate force in the war on terror.

DAVID COLE, GEORGETOWN UNIVERSITY: I think the president clearly broke the law.

TODD: David Cole, professor of constitutional law and national security at Georgetown University, bases his opinion on the Foreign Intelligence Surveillance Act. FISA, as it's called, allows electronic surveillance without a court order so long as it occurs within 15 days of a declaration of war. Cole says the president did not follow that limitation.

COLE: If the person who authorizes the wiretap is punished, then it's up to five years in prison or a $10,000 fine. Now, you know, for the president to pay that price, he would have to be prosecuted by Alberto Gonzales.

TODD: But the attorney general says FISA, passed in 1978, doesn't account for the electronic age of warfare.

GONZALES: There have been tremendous changes in technology since then. And what the folks at the NSA tell me is that we do not have the speed and the agility in all cases to deal with this new kind of threat under the Foreign Intelligence Surveillance Act.

(END VIDEOTAPE)

MANN: Brian Todd.

All of this is happening in a murky place where politics, law and war intersect.

Our senior legal analyst, Jeffrey Toobin, joins us now to talk about it.

What do you make out of this?

JEFFREY TOOBIN, CNN, SR. LEGAL ANALYST: Well, Jonathan, I think, to put this in some context, this administration, particularly Vice President Cheney, believes that the presidency has been diminished in recent years and that the legislature and the courts have taken away too much of the president's power.

This is just one attempt that the administration has made to reassert itself in the constitutional scheme. The question, and it's a very open question, is whether they violated the law in order to do it.

MANN: Well, they say, as we heard Brian Todd report, that both the constitution and the joint resolution after 9/11 specifically empower the president to do just the kinds of things he's done. Do legal scholars all agree?

TOOBIN: Well, so far, the legal scholars that weighed in are overwhelmingly against that position. Article II has never been interpreted to give cart blanche for wiretapping domestically. And the authorization for war doesn't say anything about intelligence gathering. It says the use of force.

So it hasn't been a very persuasive argument so far. Perhaps as we get into more of the details, it will be, but I think the administration is clearly on the defensive, from a legal perspective.

MANN: There is another law that people have been quoting, the Foreign Intelligence Surveillance Act, which specifically sets up secret courts that would authorize wiretaps where necessary in the war on terror and any other foreign intelligence issues. The president says, his advisors say, that they can't go to court every time they need a wiretap because it takes too long.

Opponents of the president say that in fact the law allows for retroactive approval, that if the president or his people need to make some kind of eavesdropping operation, they can do it quickly and go to the courts within 72 hours afterwards to seek authorization. Who is right there do you think?

TOOBIN: Well, you know, it's hard for me to see how the president could be right under those circumstances, because, yes, it is certainly true that in a world of cell phones and Blackberries they have to move extremely fast and they can't be running to court, even though the FISA court works very quickly by legal standards.

But when you have a specific provision in the law that says you don't have to go to court first, you can go to court afterwards, I don't see how the speed argument helps the president at all.

MANN: This is an administration that has described the Geneva Conventions as quaint, that has done really unprecedented things with the people it calls unlawful combatants, that has stretched a lot of law, domestically and overseas, past the point where many legal scholars recognize what they're doing. Let me ask you, how does this compare to the other interesting precedents that the administration is setting? Is this just one more step down the road? Is this the most egregious? Is it just something quite harmless compared to the earlier steps?

TOOBIN: Well, I don't know if -- how it stands on the egregiousness standard, but it's certainly very similar.

The Supreme Court two years ago said -- the administration said about enemy combatants, said we could hold, including American citizens, indefinitely without filing charges against them, and the United States Supreme Court very clearly said you can't do that. You have taken too much power for yourself.

Here it seems to be a similar attempt to expand the power of the presidency. The interesting question here about this spying operation is whether anyone will have legal standing to challenge it, because under our rules of the courts, only someone who was wiretapped could probably challenge this law, and the people who are wiretapped don't know they're being wiretapped, so that's the interesting question.

MANN: The president seems to be once again sidestepping this as a legal matter entirely, taking it to the American people and saying he is doing this to protect them, essentially making a political argument rather than only the legal argument that we've been hearing.

Ultimately, when you look at how real issues are decided in the public life of the United States, especially in a time of war, do you think this will ultimately be decided politically? Do you think the American people are likely to support it?

TOOBIN: Jonathan, I see that your lips were moving, but there was another sound in my ears and I couldn't hear a word you said, so I apologize for that.

MANN: Can you hear me now?

TOOBIN: Now I can hear you.

MANN: Ultimately, the president is behaving like this is a political issue, that if he gets the American public on his side, it really won't matter what the nay-sayers and the critics and the pundits like you have to say. Do you think ultimately politically the president is simply going to get his way on this because the American people are frightened and they believe these kinds of measures protect them?

TOOBIN: That may well be. What's interesting about this controversy is that it's the first time since September 11, 2001 that the Democrats have decided to take the president on on a matter related to national security. I think it's indicative of how low the president is in the polls now, the Iraq war not going particularly well. I think it's the first challenge he's received on this issue, and I certainly wouldn't want to guess how it's going to turn out politically. But certainly it's a big change in how politics has been in this country for more than four years.

MANN: Our senior legal analyst Jeffrey Toobin. Thanks very much.

TOOBIN: OK, Jonathan.

MANN: Just ahead, what happens when the FBI comes knocking at your door? We'll talk to a journalist who has been spied on by the U.S. agency.

Stay with us.

(COMMERCIAL BREAK)

MANN: Pakistan has been one of the battlegrounds in the international war on terror. Whether Kashmiris fighting against India or Islamists fighting against the West, the government of Pervez Musharraf has taken strong steps to rid his country of extremists. It should come as no surprise that the United States has some suspicions about some Pakistanis as well.

Welcome back.

Consider the case of an American citizen of Pakistani descent living in Washington who says his phone calls were monitored by the U.S. government. He may be a familiar face. His name is Nayyar Zaidi and he is the Washington correspondent for Pakistan's "Daily Jang," a frequent guest on CNN who is with us once again today.

Thanks so much for being with us.

What happened to you?

NAYYAR ZAIDI, "DAILY JANG": Well, on February 20, 2003, I was not home, only my 15-year-old son was home. Three FBI agents came to me house, one male, who was a lawyer and an FBI agent, and two female agents. And they asked my son if I was home, then they wanted to enter my house.

My son asked them, do you really have to. They said yes. So they came in, looked around and asked him some questions.

So my son then got panicky and they left their phone numbers and names. So he tracked me down on my cell phone and said the FBI was here looking for you. I said OK, relax, calm, I'm coming home.

I came and called them back, the special agent, Chris McKinney (ph), and he said, "Mr. Zaidi, we have found that 10 phone calls were made from your home phone overseas to different countries, including India, Pakistan, China," God knows. Holland. And these were his exact words, "that brush off against 9/11 phone numbers."

I said, well, I have several phones at home, which phone number. He said the very phone number on which you are calling me, which was on the caller ID.

So I said OK. Then I went to the Washington field office. They interrogated me for two hours, mainly starting with profiling questions. "Mr. Zaidi, how many kids do you have, how many cars do you have, your children, their car registrations, their cell numbers".

MANN: Forgive me for interrupting. Did you through any of this get the idea that they had actually listened in on phone calls or simply that they had phone records and were curious about the numbers?

ZAIDI: Well, they did not -- and, again, these people don't admit anything. If they had the phone records, they wouldn't be asking me for three years of phone records. I mean, if they had anything on me and they had proceeded lawfully, like a court order or an affidavit, they didn't have to come to me.

The bottom line, they were saying, was that 10 phone calls were made and now you turn over all your phone records going back to January 1, 2000.

I said I'm a journalist, I cannot turn over my phone records. You have to go and, you know, obtain them from the phone company, however you want. And they won't give me the phone numbers. They gave me one phone number in Pakistan which I had checked out, turned out to be a disconnected phone number of a textile mill that had gone bankrupt.

MANN: I'm going to interrupt you again, forgive me. We do not have independent confirmation of what you are telling us. We called the FBI, and there was no statement that they would offer us. They offered no comment whatsoever. We do know that the Pakistani took what you said seriously enough to get in touch with the U.S. State Department. What happened after that? Did you ever face legal charges? Were you ever arrested? Were you ever questioned again?

ZAIDI: No. After that, the next morning, when I spoke to another agent, she was very angry and she threatened me. She said, "Mr. Zaidi, if you do not cooperate, the investigation will continue."

I brought it to the attention of the embassy of Pakistan, because "Jang" is the largest newspaper in Pakistan. They took it up both in Islamabad and here. They actually wrote a letter. And the response was made both in Islamabad and here, from the State Department -- FBI hasn't said anything. They have not said that I'm no longer a suspect or I'm not being investigated.

MANN: I'm going to jump in and ask you the last question, the crucial one, which is you are an American citizen. You know that there is a war being fought against terror. There is a war being fought in Iraq. Were you harmed by what you experienced? Do you object to the treatment you received? Or did it seem like a bad lead that the U.S. government tried to follow-up in an honest way?

ZAIDI: No. The questions that I was asked there, by the way, was, he asked he, he said, "Mr. Zaidi, answer yes or no. Do you know anyone who is even this much an extremist or fundamentalist?"

I said can you quantify this much so I can answer this question. I am terrified. We, the immigrants, run away from this kind of tactics. We wanted to come and settle in the United States, and I was absolutely terrified, my family was terrified that somebody would ask me if I go to the mosque or somebody had somehow obtained some information on my phone records or is monitoring my phone records or is going to monitor my children's phone records or telephone conversations and then knock on the door.

Let me tell you one bottom line. I told him, I said, you know, we had run away from the midnight knocks, and now we end up with the midday knocks.

Nayyar Zaidi, with the "Daily Jang," thank you so much for talking with us.

That's INSIGHT. I'm Jonathan Mann. The news continues.

END

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