CNN The Situation Room - Transcript

CNN The Situation Room - Transcript

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BLITZER: The Bush administration says it kept senior lawmakers informed about the electronic eavesdropping on Americans without court orders.

In the last hour, I spoke with former Democratic Senator Bob Graham -- he was the chairman of the Senate Intelligence Committee in 2001 -- and with Republican Senator John Cornyn. He serves on both the Judiciary and Armed Services Committees.

(BEGIN VIDEOTAPE)

BLITZER: Senator Graham, Senator Cornyn, thanks to both of us for joining us.

Senator Graham, first to you. You were the chairman of the Senate Intelligence Committee before and after 9/11.

The president says you and other Democrats were informed of his extraordinary decision to authorize this secret wiretapping of American citizens without court orders. Is that true?

FORMER SEN. BOB GRAHAM, (D-FL), INTELLIGENCE COMMITTEE FORMER CHAIRMAN: Wolf, the meeting that I attended focused on the fact that there were telephone communications from one foreign site to another that were now being sent, transited through the United States.

The question was, could the NSA collect those intercepts, since technically they were inside the United States. The administration felt they should be able to do so. I believe that all of the congressional members of the Intelligence Committee also agreed with that.

What I did not hear was that that collection was going to involve procedures other than that which had been used for over 22 years, which is that you seek a warrant from this special security court which meets in secret, either before you intercept or within three days after you intercept.

That is a procedure that had worked very well. I had heard no criticisms. The administration had not recommended any amendments to the law to make it more effective.

BLITZER: Let me interrupt, Senator Graham. So what you're saying is you were never told that there would be surveillance of American citizens without court orders?

GRAHAM: That's correct. BLITZER: Well, what about that, Senator Cornyn? You're a former judge. Should the American public be outraged that the president made this decision?

SEN. JOHN CORNYN (R-TX), JUDICIARY COMMITTEE: I guess we have a different version of the facts, Wolf, from Senator Graham than we've had from Jay Rockefeller, who's a current ranking member, Nancy Pelosi and others who said they were consulted on this.

But the fact is -- and I've had a chance now to do a little research into this ,-- this authority is one that comes from the president's power under the Constitution as commander in chief ...

BLITZER: Let me interrupt, Senator Cornyn, if I may. When I hear is the former chairman, Senator Graham was then the chairman of the Senate Intelligence Committee when this decision was made, not later when Nancy Pelosi came in or Jay Rockefeller came in. He was the chairman. And he says they never told them they would spy on American citizens without court orders.

CORNYN: There's obviously a difference of the story from what we're hearing from Nancy Pelosi, Jay Rockefeller and other Democrats who said they were consulted. But the fact is, Wolf, this authority under rare circumstances is one that's been claimed not only by this president, by President Clinton, President Reagan, President Carter and presidents dating back to at least to Franklin Delano Roosevelt.

This is important. It is a limited surveillance of terrorist operatives in the United States communicating with people overseas. The president has a responsibility to use all legal means to collect that intelligence to protect American lives.

BLITZER: Senator Graham, I've known you for many years, and most of your friends and colleagues know that you're very meticulous. I know you also keep a diary every day of things that happened to you. Have you gone back in your diary, just to refresh your memory, to make sure they never told you about domestic spying without court orders?

GRAHAM: Because any statements that are inscribed from a classified briefing are subject to removal, capture and secure safekeeping, I did not write down notes from meetings to which those would be the standards.

But let me say a couple things. One, Jay Rockefeller did become the ranking Democrat on the committee as of January 2003. I left the committee on the same day. So what they might have been saying a year and a half later, I do not know.

Number two, if the administration felt that there were problems with the FISA act, if this 22-year-old act that had served the country very well was deficient, then the administration had the responsibility of coming to Congress in the fall of 2001, probably as part of the Patriot Act, to ask for changes. To my knowledge, they did not do it at that time; they have not done it since.

BLITZER: Well, let me ask Senator Cornyn. Would you have felt comfortable, Senator Cornyn, if former President Bill Clinton had unilaterally decided to change the rules of the game and authorized secret surveillance of American citizens without any court orders? Would you have been comfortable with that?

CORNYN: Well, Wolf, what I understand, this is not changing the rules of the game. This is consistent with what President Clinton did and presidents dating back as long as...

BLITZER: I don't think President Clinton ever -- I don't think he ever authorized secret intelligence wiretaps of American citizens without court orders.

CORNYN: 1994, Jamie Gorelick, on behalf of the Clinton Justice Department, testified that they considered -- that President Clinton considered it within his constitutional authority to order wireless surveillance of potential terrorist operatives from a foreign power. And, you know, it goes back to an executive order signed by Ronald Reagan and others.

BLITZER: But those were -- but were those American citizens?

CORNYN: Well, they could include American citizens, if it was connected with a foreign power -- agents of a foreign power.

BLITZER: Without a court -- without a court order?

CORNYN: That's correct.

BLITZER: Is that true, Senator Graham?

GRAHAM: Well, the answer is no. Since 1978, there's been this special secret court, a court which has given way over 99 percent of the warrants that were requested, a court that can retroactively approve wiretaps if the administration feels there was not enough time to act first.

The basic question is, what is wrong with that current procedure that required the president to unilaterally trash it and proceed to get warrant-less intercepts, including against United States citizens? And if I could ask...

CORNYN: I'll be glad to answer that.

BLITZER: Hold on one second. Hold on one second, before we get to that, though, Senator Cornyn, let me rephrase the question that I asked before. You wouldn't have a problem if Bill Clinton had authorized surveillance on American citizens without going to court and getting a court order?

CORNYN: If, in consultation with Congress, the president felt that it was important to discharge his responsibility to protect us against foreign spies and terrorists, I would have no problem with that. That is the president's primary responsibility as commander in chief.

I would point my friend, Senator Graham, to the testimony of Jamie Gorelick before the Senate Intelligence Committee, or House Intelligence Committee, in 1994, when she said that President Clinton, that administration, claimed the authority under the Constitution to perform those kind of warrant-less searches.

The reason why that's important, as Director Mueller has said before the Judiciary Committee in May 2004, is because the FISA process -- the Foreign Intelligence Surveillance Act process -- was getting jammed up, and agents weren't able to get the orders that they needed in order to do this kind of surveillance.

BLITZER: We're out of time, but Senator Graham, I'll give you the last word. Go ahead.

GRAHAM: Well, I think the administration is going to bear the burden of coming before the American people and stating, here are some cases that we were able to make to avoid terrorist attacks because we wiped away these basic civil protections, and that would not have been made had we complied with the law. I don't think there are such cases.

BLITZER: All right. We've got to leave it there, Senators, unfortunately, but a good discussion. Senator Graham, Senator Cornyn, merry Christmas to both of you.

CORNYN: Thanks, Wolf. Same to you.

GRAHAM: Thank you.

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