MSNBC The Abrams Report - Transcript

MSNBC The Abrams Report - Transcript

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ABRAMS: America is being watched by our own government. "The New York Times" reporting that since 2002 the government has been monitoring phone calls and e-mail traffic of Americans without approval from a judge. That a presidential order allowed the National Security Agency to monitor Americans‘ international phone calls and e-mails overseas in an effort to track down terrorists.

Under federal law generally the NSA isn‘t permitted to monitor Americans on domestic soil without a court order. Some Republicans expressed concern while some Democrats, outrage.

(BEGIN VIDEO CLIP)

SEN. RUSS FEINGOLD (D), WISCONSIN: And I don‘t want to hear again from the attorney general or anyone on this floor that this government has shown it can be trusted to use the power we give it with restraint and care. This shocking revelation ought to send a chill down the spine of every senator and every American.

(END VIDEO CLIP)

ABRAMS: "The New York Times" said it held the story for a year at the request of the administration. They had said it would tip off terrorists as to the tactics being used. The paper also reporting that top members of Congress were briefed back in 2002 on the NSA‘s expanded spying powers, but Senate Judiciary Chairman Arlen Specter said today he plans to call for congressional hearings.

Joining us now is former federal prosecutor Andrew McCarthy, who was a prosecutor in the 1993 World Trade Center bombing case and Democratic congressman and House Judiciary Committee member, Adam Schiff, cofounder of the Democratic Study Group on National Security. Gentlemen thanks for coming on the program. Appreciate it.

All right, Andrew, you don‘t think this is a big deal?

ANDREW MCCARTHY, FORMER FEDERAL PROSECUTOR: No, I really don‘t and I‘m surprised that Senator Feingold says he‘s shocked. I think he should probably ask Senator Rockefeller who‘s obviously known about this for some time. What—it‘s obvious what‘s going on here.

I mean this is a story that the "Times" has had for a year. There are serious people who we‘re trying to deal with the challenge of dealing with a transnational terrorist organization that can move on the dime under circumstances where sometimes we have to get up on a phone quickly. The FISA Act did not repeal the second article of the Constitution.

The president still maintains and has to maintain the authority to protect Americans in an emergency. And frankly, the story as the "Times" tells it suggests that there are Americans who are alive today in New York and Washington who might not be alive if this hadn‘t been done.

ABRAMS: But doesn‘t that—using that standard, that is such a broad standard that it basically says that the president can do really whatever he wants when it comes to monitoring as long as he determines that there is a good reason to do it?

MCCARTHY: Well no, Dan. I mean frankly it doesn‘t say that. I mean first of all...

ABRAMS: What is the standard?

MCCARTHY: Well the standard is that when there is an authentic national security crisis and the president acts responsibly, acts quickly...

ABRAMS: Wait. Wait. Wait...

MCCARTHY: And...

ABRAMS: But wait, wait...

(CROSSTALK)

ABRAMS: You should know as a lawyer when (UNINTELLIGIBLE) words like responsibly and quickly, that‘s the standard.

MCCARTHY: Yes. Exactly.

ABRAMS: OK, so the legal standard is...

(CROSSTALK)

ABRAMS: ... if the president acts responsibly and quickly, then it‘s

OK...

(CROSSTALK)

MCCARTHY: So you think degrading is a tight standard, Dan?

ABRAMS: And therefore what? I mean...

MCCARTHY: And therefore what we have here is people reacting responsibly and also keeping in the loop the congressional leadership of both parties and the chief judge of the FISA Courts.

ABRAMS: Representative Schiff, did you know about this?

REP. ADAM SCHIFF (D), CALIFORNIA: No, I certainly didn‘t and Dan, you‘ve actually got two former federal prosecutors here. The first time I came in contact with intelligence of this nature was when I prosecuted the Miller spy case back when I was with U.S. attorneys in L.A. I find this very troubling, very concerning that the NSA is using domestic eavesdropping potentially against Americans and lawful residents without review each time by the FISA Court.

I think there are some very important questions to be answered and you know some of them I would agree with my colleague will have to be answered by the members of Congress because we really haven‘t done adequate oversight in this area or practically any other. But the pattern of the last couple of days, we saw disclosure two days ago that we may have government intelligence officials sitting in surveilling Quaker meetings in Florida and other peaceful protests elsewhere in the country followed by the disclosure that we may have the NSA engaged in borderline if not improper eavesdropping on American soil...

ABRAMS: Let‘s focus on this...

(CROSSTALK)

ABRAMS: Let‘s focus on this one...

(CROSSTALK)

ABRAMS: Let‘s focus on this one for a minute though. I mean look, they would say, it‘s not as if any American out there is being eavesdropped on. They would say, look, we‘ve got a bunch of names of people who we had questions about and only when they made calls internationally, only when they e-mailed internationally, that‘s the only time that this would kick in. So they would say that this is being overstated vastly by sort of saying oh, all Americans are at risk of being monitored.

SCHIFF: First of all, Dan, I haven‘t heard the administration say that this authority was only used on foreign nationals...

ABRAMS: No, I didn‘t say foreign nationals. I said...

(CROSSTALK)

ABRAMS: ... only on foreign phone calls.

SCHIFF: Well but we‘re talking about potentially American citizens calling people in Europe or in Asia or elsewhere. And doing so, being surveilled while they are doing so without any court or any independent authority outside of executive to give it a critical look. And I think that‘s very troubling.

The question is not just whether it produced important evidence or intelligence. That is an important question, but the question is also, why not go to the FISA Court...

ABRAMS: Yes.

SCHIFF: ... where you get a response from the court within hours and where there is some oversight.

ABRAMS: Andrew, you know the FISA Court. Look, the bottom line is this is a special court that deals with these kinds of matters. The standard is much lower than an ordinary court in order to eavesdrop...

MCCARTHY: The standard is not much lower.

ABRAMS: It is lower. Come on.

MCCARTHY: No, it‘s probable cause, but it‘s probable cause not of a crime...

ABRAMS: It‘s also may have...

(CROSSTALK)

MCCARTHY: Dan, being an agent of a foreign power.

ABRAMS: May have...

(CROSSTALK)

ABRAMS: May have been an agent.

MCCARTHY: No, no, no.

ABRAMS: Yes.

MCCARTHY: Probable cause, Dan...

ABRAMS: Andrew, come on, you‘re not going to sit here and tell me that it‘s the same standard...

MCCARTHY: Probable cause is the same standard...

ABRAMS: But that‘s not the only question that‘s asked in the FISA Court. You know that...

(CROSSTALK)

ABRAMS: Come on...

MCCARTHY: You‘re asking me what the standard is...

(CROSSTALK)

MCCARTHY: You‘ve got to show probable cause...

(CROSSTALK)

MCCARTHY: ... that it‘s an agent of a foreign power.

ABRAMS: Go ahead, Congressman.

SCHIFF: You asked earlier what is the standard for the president to employ and the response was well, what he needs to do to protect the country. The standard is also the Constitution.

UNIDENTIFIED MALE: Right.

SCHIFF: And I think one of the things we‘re going to have to do in Congress is determine whether what the president has authorized meets the standards of the Constitution...

ABRAMS: That‘s a separate question, though. I mean it‘s a constitutional question. I‘m not minimizing it. I‘m just saying it‘s a separate question from the question specifically that Andrew was sort of worming around, which is the notion that somehow the FISA Court has the same standard for getting a warrant as other—as any other court...

(CROSSTALK)

ABRAMS: ... which you know is not true.

(CROSSTALK)

UNIDENTIFIED MALE: Hey, what do you mean by that?

(CROSSTALK)

SCHIFF: Even if the standards are slightly different, if there is no independent body, no independent court officer reviewing it, then we don‘t know whether the standards are (UNINTELLIGIBLE).

ABRAMS: And what about that, Andrew? What about that comment?

MCCARTHY: I want to go back to what do you mean I know that it‘s not true. Probable cause is probable cause...

ABRAMS: Andrew, look...

(CROSSTALK)

ABRAMS: Stop. Look...

(CROSSTALK)

ABRAMS: Don‘t play games here. You know...

MCCARTHY: I‘m not playing games.

ABRAMS: You‘re not going to suggest to me...

MCCARTHY: I feel like you are playing games...

(CROSSTALK)

ABRAMS: I‘m going to ask you a straight question...

MCCARTHY: Probable cause is probable cause.

ABRAMS: Let‘s make it really easy. Let me make it really easy, all right. Are you saying that it is just as easy to get permission to use surveillance—I‘m going to try not to use legal terms—are you telling me that it is exactly the same standard, just as easy to get permission to use surveillance on an American citizen in a regular court as in the special court? Because if it is, there is really no reason to have the special court except for the fact that they have additional secretive requirements.

MCCARTHY: I feel like we‘re talking past each other. It‘s the same standard as far as evidence is concerned, which is probable cause. You have to make...

ABRAMS: Why won‘t you answer my question? Is it or is it not easier to get permission to engage in surveillance using the special court?

MCCARTHY: It‘s more difficult internally to get permission to use the internal—to use the foreign...

ABRAMS: I don‘t know what that means.

(CROSSTALK)

ABRAMS: I don‘t know what that means.

SCHIFF: There are three different processes we‘re talking about, one is using the grand jury and using the court to get a title three criminal warrant...

MCCARTHY: The grand jury doesn‘t have anything to do...

SCHIFF: That is the highest standard to be met in a criminal investigation. Another is to go to the FISA Court, which is a slightly different standard and another is the NSA process evidently where there‘s no standard to be scrutinized by any independent body and that‘s what is concerning here. To get a title three warrant...

ABRAMS: All right.

SCHIFF: ... you have to jump through several hoops to get...

(CROSSTALK)

ABRAMS: Let me bring this back.

SCHIFF: ... you‘ve got to get a court approval. We don‘t know...

ABRAMS: All right.

SCHIFF: ... if there is any scrutiny...

ABRAMS: Well that‘s what I want to...

(CROSSTALK)

ABRAMS: Andrew, let‘s agree to disagree. I won‘t follow up with you. Look, we‘ll agree to disagree on the other issue. Let me ask you what about the congressman‘s point about the fact that there is no court reviewing? And that‘s the problem here.

MCCARTHY: Well you know look, with respect to the NSA, for the most part what they do is surveillance of overseas where the United States courts frankly don‘t have any jurisdiction anyhow. But we are going to have to deal with the fact that we have a transnational enemy that can act very quickly and there are times when it is simply not going to be possible if you get information and you have to react quickly...

ABRAMS: Yes.

MCCARTHY: ... to go through the FISA process...

ABRAMS: What about that, Congressman? That makes sense to me.

SCHIFF: If that‘s true, I mean if, for example, you can‘t wait the two hours it would take to go to a FISA Court, then maybe what we ought to institute is when you need to go and have an NSA surveillance this way after the surveillance you have to disclose it to the FISA Court within a day or two days, so there is still some independent review. That objection can be met. All of the national security interests can be...

ABRAMS: Well I‘m going to ask Andrew about that. What do you make of that suggestion?

MCCARTHY: I don‘t think that that‘s off the wall at all.

ABRAMS: Yes.

MCCARTHY: I would point out that you know here we have a situation where I think people are trying to honestly grapple with these problems. That‘s the reason that there was disclosure made to the intelligence committees and to members of both parties and the fact that Judge Catelli (ph), the head of the FISA Court, knows about it.

ABRAMS: Bottom line Congressman, do you think this is being overstated? I mean this is being suggested by some as some huge disclosure. I mean I think Andrew has got a fair point in the sense that even if people didn‘t know all the details, there was sense out there—there was an understanding on the part of many in Congress that some of the rules had changed as a result of 9/11.

SCHIFF: Here‘s a thing that I think concerns us in Congress. In my district the IRS recently told a church it could lose it‘s tax-exempt status for a sermon about war. Two days ago we learned that we may be surveilling Quaker meetings in Florida and now we learn that the NSA may be using it‘s eavesdropping...

ABRAMS: All right.

SCHIFF: ... on American citizens. We need to oversee this entire arena because I think the executives decided that the authorization to protect the country from the war on terrorism is a blank check and it‘s not.

ABRAMS: Andrew, you got a final word? I got to wrap it up.

MCCARTHY: Yes, we are at war with an enemy who is trying to kill us. They killed in Madrid, in New York, in Washington, in London and you know what I think we‘re hearing is the September 10 spirit is alive and well.

ABRAMS: Andrew McCarthy, Congressman Schiff, thanks a lot.

Appreciate it.

UNIDENTIFIED MALE: Thank you.

ABRAMS: Coming up, the Natalee Holloway investigation goes to Capitol Hill. What I don‘t get is a U.S. congressman comes out and says the Aruban authorities are cooperating with the FBI, so do we still need to have a boycott?

And later, remember this video? "Dateline‘s" Chris Hansen is back with an update on some of the men, a teacher, a doctor, a rabbi who showed up at a suburban Washington, D.C. house looking for sex with children. What happened to those men in the month and a half since the story aired?

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