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The Fog of Law: The Need for a Legal Framework for Twenty-First Century Security Policy [Rush Transcript; Federal News Service, Inc.]

Speaker: Jane Harman, U.S. Congress (D-CA), Ranking Member, House Permanent Select Committee on Intelligence
Presider: Richard M. Cohen, Columnist, Washington Post
March 13, 2006
Council on Foreign Relations

Council on Foreign Relations
New York, NY

 

RICHARD COHEN: Welcome to today's Council on Foreign Relations meeting. Please remember to turn off your cell phones, BlackBerrys and all wireless devices.

I'd like to remind the audience that this meeting is on the record. This meeting is being teleconferenced. Council members around the nation and the world are participating in this meeting via a secure password-protected teleconference.

Now today's schedule is going to be a little bit different because first Representative Harman is going to speak for about 15 minutes and then we'll do a Q & A session which I will moderate. So it's kind of silly to introduce her to say anything more than Representative Jane Harman -- she is the ranking member on the House Intelligence Committee, probably one of the most important and well-informed people in all of Washington and the person who got to see the NSA intercepts -- one of the few people who got to see the NSA intercepts, so she knows more about you than you'd like her to know. (Laughter.) So be nice to her or she'll yank your file.

Without any further adeiu, Congresswoman Harman.

REPRESENTATIVE JANE HARMAN (D-CA): Thank you. (Applause.) Thank you, Richard. Ssshhh! They're listening. (Light laughter.)

It's great to be back here. You should know that I'm a CFR member and have been for a long time. And you should also know that one of my sons, who is a CFR term member, Brian, is sitting in the front row, and a daughter is -- is late, as usual. (Laughter.) But it is nice to see many good friends. And I especially want to say that Ted Sorensen's being here honors me. It really is a big deal to have Ted Sorensen in this world, and to have him show up when you're talking about something is even a bigger deal. My husband will be sad that he's missing this.

There are a lot of smart people in this town, but Richard Haass stands out. Some of us wondered whether Richard could improve on Les Gelb's marvelous work here, but I know that Les agrees that Richard is doing a great job, and there has never been a greater need for clear-headed, serious foreign policy thinking. That's what CFR provides every single day, and I'm a grateful consumer, both here and in Washington, in written form, oral form, whatever it takes. I'm on every mailing list you have. Many trees have died to train me. (Laughter.)

At any rate, I have devoted many years in Congress, as most of you know, to security issues -- how to identify, disrupt and defend against threats to our country. I was a member, with Richard Betts, of one of the three major commissions -- this one called the Bremer Commission -- that predicted a major attack on U.S. soil, and I have probably served on more security committees in Congress than anyone presently serving.

Nine-eleven was a failure on multiple levels. First, we missed the rise of a new form of radical political Islam, which occurred probably -- at least the way I would count this -- first in 1979 with the overthrow of the Shah, and during the decade of the 1980s with numerous attacks on U.S. forces and kidnappings and so forth. It was a failure through four presidencies, of inadequate attention paid to how the world was changing.

A second failure was our failure to predict when the Cold War would end and that we would be left standing as the world's only superpower. We had no road map for the post-Cold War world, and I believe we have yet to agree on one.

Third, we failed to see that warfare itself would change radically, that we would no longer face off against other states in traditional force-on-force battles, but rather that we would be facing asymmetric threats from organizations and individuals motivated by radical ideologies.

And fourth, for 15 years after the Wall came down, we continued with an intelligence community structure designed to confront the Soviet bear. Back then, the enemy's targets -- think a Soviet tank column -- were easy to find but hard to stop. Today it's exactly the opposite. It will take a very small amount of force to put bin Laden out of business, but it has taken years and billions of dollars and many, many lives just to locate him, and we have yet to capture him.

Think about a terrorist moving quietly across borders, blending in with the population, switching identities, using different e-mail accounts, switching cell phones, smuggling some nuclear material, let's imagine, into New York Harbor in one of the millions of containers that go uninspected every year. For all of the talk about smart weapons, the smartest weapon we have -- THE smartest weapon we have -- is the trained intelligence professional, the person who is going to penetrate the terrorist cell or get information about that terrorist. In today's world, intelligence is the key to protecting our country.

We have in recent years reorganized our intelligence structure, an effort in which I played a small but I think important role. But four years since 9/11, we still don't have a legal framework for how to gather intelligence and what specifically we expect our intelligence operatives to do -- the rules within which they must live. By legal framework, I mean a set of clear laws established by Congress that delineate what the government can and cannot do in fighting terrorism and apprehending suspected terrorists.

Actually, we've seen this movie before. In 1975, Congress began to investigate allegations that the NSA was spying on the international communications of American citizens. Members of Congress tried to talk to NSA officials, but they were stonewalled, told that the information was too sensitive to share. Sound familiar? Then on August 8th, 1975, The New York Times used leaked information in a front-page article entitled "National Security Agency reported eavesdropping on most private cables." Does that sound familiar? The leak broke the logjam. What Congress ultimately learned was that since the 1950s, the NSA had operated a secret program code-named "Shamrock" that intercepted every telegram coming into and out of New York. Every day, a courier would take a train from NSA headquarters in Maryland to New York City, where he would collect reels of magnetic tape from the three major telegraph companies, containing copies of every international telegram sent into and out of New York the preceding day. Shamrock was soon shut down, and Congress vowed stronger oversight. That doesn't sound familiar. (Laughter.)

In 1976, the Senate established the Senate Intelligence Committee, followed in 1977 by the creation of the House Intelligence Committee. The role of these committees was to ensure that U.S. intelligence activities operate within the law, the Constitution and the policy parameters approved by Congress. Because our oversight necessarily occurs behind closed doors without public scrutiny, it must be all the more rigorous.

Just like 30 years ago in that crisis, I believe that the new threats of the 21st century require Congress to create a legislative and oversight framework, because without this framework, the actions of our government are slowly becoming pulled off their constitutional moorings. This president and, especially, this vice president, have asserted such an expansive view of executive power that Congress has almost entirely been squeezed out.

Presidential power always expands in war time; that's no secret. But under this president, war time seems to be all the time. Consider the following:

First, shortly after 9/11, the White House redefined torture. In the now-famous memo which has since been repealed, DOJ lawyers defined torture as, quote, "equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death."

Second, to keep war captures out of reach of American courts, the U.S. military sent them to Guantanamo Bay, Cuba -- which is not U.S. soil; it is leased from the Cuban government, and has been for most of the last 100 years -- therefore giving them no legal status or the ability to challenge their status.

Third, the administration claimed the power to detain U.S. citizens indefinitely, including Yaser Hamdi and Jose Padilla, without charges or access to counsel.

Fourth, the attorney general told the Senate Judiciary Committee that the U.S. was not bound by its international treaty obligations to prevent cruel, inhuman and degrading treatment for persons we hold abroad.

And fifth -- and we all know this one -- a foreign intelligence collection program was designed by NSA without -- or let me put it differently -- without full regard for the need to comply with the Foreign Intelligence Surveillance Act.

In each of these cases, when you ask senior administration people, as I have, what legal justification they assert for these activities, their answer is always the same -- the president has all the authority he needs under Article II of the Constitution. Forgotten is that Article I, the legislative piece of the Constitution, comes before Article II.

Previously clear lines -- like no torture, no detention without a legal status, no warrantless surveillance of U.S. persons -- have become dotted lines. Under this theory of executive power, there are no limits to the president's power. Any effort by Congress to legislate is deemed unnecessary. If you try to limit unfettered executive authority, Bill Frist will say you're coddling terrorists, and the White House will question your patriotism. This is not just an academic discussion. I care deeply about catching bad guys. I think that the lack of clear rules makes it harder to catch them because intelligence professionals are unsure how to operate and, in some cases, become risk-averse.

Consider the case of Anthony Lagouranis, an Army interrogator assigned to Abu Ghraib. In an op-ed in The New York Times last month, he wrote: "In training, we learned that all POWs are protected against actual and implied threats. That was clear. But our Iraqi prisoners weren't classified as POWs, so I never knew what laws applied." It's an atmosphere that I have called the "fog of law." Everyone knows about the fog of war, when soldiers on the battlefield cannot see the context in which they're operating and their confusion limits their effectiveness. Well, the fog of law is equally dangerous. No one knows what's appropriate; no one knows what is lawful. Intelligence professionals don't know the limits of what they can do; Congress doesn't fully know what the executive branch is doing; the courts are cut out; the public is in the dark, and the rule of law is slowly eroded.

The torture issue is instructive for the way the executive branch should not handle an issue. Attorney General Gonzales took the position that the administration was not bound by the prohibition on cruel, inhuman and degrading treatment because, according to him, foreigners whom we held abroad were not entitled to constitutional protections. This essentially meant that if you were outside the U.S., the U.S. could do things to you that it could not do if you were brought to a U.S. facility. I disagree that the president had the authority to decide this unilaterally. Article I, Section 8 says that Congress has the responsibility to establish rules concerning captures on land and water.

But as I know the immense value of the intelligence we get from interrogations, I made a big effort to work with the administration in hopes that we could craft something satisfactory to them and to Congress. To be fair, parts of the administration were for my approach. The State Department, some lawyers in DOD who have been chronicled in The New Yorker, some lawyers in the Justice Department agreed that we needed clear rules. But the vice president's view that nothing could interfere with the president's inherent authority prevailed. The administration stonewalled Congress until Congress pushed back.

Senator McCain, with enormous moral credibility on this issue, forced the administration to accept a complete ban on cruel, inhuman and degrading treatment. Because the administration refused to engage, there was no way to craft a nuanced solution, which I think would have been a better solution. I joined McCain in calling for the total ban. It was the best option we had, but it was an imperfect option.

Similarly, on the issue of Guantanamo, Senators Lindsey Graham and Carl Levin drafted legislation that allowed inmates at Guantanamo limited access to U.S. courts of appeal. Their intention was good, but their amendment was rushed through Congress with no hearings and too little consideration and, it turns out, it falls short of what is needed.

But the story doesn't end there. The president issued a signing statement for the McCain amendment in which he said he would interpret the law, quote, "consistent with the Constitutional authority of the president as commander in chief," unquote. To many, this means he may disregard Congress and a law he just signed.

Nowhere has the fog of law been thicker than on the NSA program that the president disclosed on December 17th, 2005. Congress enacted the Foreign Intelligence Surveillance Act, FISA, in 1978, as I mentioned. The law establishes two pillars of oversight for electronic surveillance in the U.S. Pillar one requires court warrants before targeting U.S. persons for surveillance. Pillar two requires detailed and regular reporting to the congressional intelligence committees about this surveillance. FISA was enacted as the exclusive way to conduct foreign intelligence electronic surveillance in the United States. The law says so in its terms, and President Carter, when he signed the law, said so in his signing statement.

While working in the Carter White House, I recall the lengthy, serious discussions on both ends of Pennsylvania Avenue about FISA. The White House coordinated closely with Congress and the intelligence committees were given the task of methodically reviewing the activities of NSA and the FBI, under FISA. There was bipartisan support for the bill. Sound amazing? Edward Levi, a former attorney general in the Ford administration, testified in favor of the legislation. A fair, bipartisan process produced a fair, bipartisan bill. But today we have a different story.

As of today, the president is still refusing to authorize a briefing for all members of the Senate and House intelligence committees on all operational details of the program. I'm told that 1,000 executive branch officials have been briefed, and I assume that one or more of those folks were the source of the leak to The New York Times. Yet 20 members of the House Intelligence Committee apparently can't be trusted with the information on the operational details of the program. As of today, 10 or 11 are going to be trusted. I don't know what the nine did to merit being cut out, and we don't even know who the nine who won't get the briefing are. This is still in flux, and I am still working on it. I think it's a violation of the National Security Act of 1947, which requires the executive branch to keep Congress fully and completely informed, and the only exception for fully briefing the intelligence committees is for covert action programs, and this is a foreign collection program.

This conflict between the executive and legislature is not new. In 1952, President Truman wanted to nationalize the nation's steel mills for national security reasons, but there was clear congressional action preventing him from doing so. The Supreme Court stepped in and, writing the main opinion, Justice Jackson said, quote, "When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb." Today, under pressure, the White House appears to be cutting a deal with Republican senators on legislation for the NSA program. But legislation is premature until the president explains to Congress why FISA is inadequate to cover the program.

In a three-hour hearing on how FISA operates last Thursday, I was impressed by how efficient the process of issuing emergency warrants is. To remind, Congress has changed FISA in at least eight respects under the Patriot Act -- changes the administration requested. And getting an emergency warrant, which the legislation gives 72 hours to do, is, as far as I can tell, not so hard when you know that one end of the telephone conversation or the e-mail is a known al Qaeda operative. I think -- and I have seen no reason that this can't be done -- that the NSA program on which I have been briefed as a member of this gang of eight can and must be fully covered under FISA. Treatment should follow diagnosis, and the diagnosis must be made first by the intelligence committees.

To conclude, Senator Graham has called this a Marbury versus Madison moment, recalling the 1803 Supreme Court case which defined separation of powers. I think he's right. We are experiencing what some others call a constitutional crisis. To come down from the brink, I think we need to do three things.

First, the executive branch must respect the laws Congress passes and work with Congress on any needed changes. We are co-equal branches of government.

Second, bipartisanship: I often say that terrorists won't check our party registration before they blow us up. The American people don't want one party in Congress to give a blank check to a president of the same party. All of us in Congress are patriots -- and oh, by the way, so are all of the American people.

And third, we urgently need the best legal minds in our nation to come together, perhaps in a new national legal commission, to grapple with the new legal framework, the nuances of the new legal framework, for the toughest issues we face confronting 21st century threats. I think Ted Sorensen ought to be on that commission, and I think it ought to consider issues like detention, interrogation, data mining, electronic surveillance, national ID cards, and a few other radioactive issues.

Other members of that committee might be Sandra Day O'Connor, Patricia Wald, Laurence Silberman, Bill Webster, Phil Hyman (sp), names you all know -- probably most of them are CFR members -- and maybe some of the brilliant younger minds, like Viet Dinh and Noah Feldman. These are folks who could carefully weigh the stakes, rather than just having one Justice Department lawyer who works for the vice president or the president provide a memo which becomes the basis for very far-reaching government action.

In closing, Ben Franklin might have been the first American to understand that this is not a zero-sum game. I doubt he would have put it that way -- but it's not that you get more security at the cost of less liberty or more liberty at the cost of less security. You either get more of both or less of both.

Imagine if today, on the House floor, we could reprise the debates of 1787 and 1788, which were chronicled in the Federalist Papers. Alexander Hamilton, aka -- I don't know, some George Bush supporter -- might argue for life terms and stronger powers for the chief executive, but James Madison, aka Jane Harman, might argue that the accumulation of all powers in the same hands may justly be pronounced the very definition of tyranny.

The modern version would be a contentious debate, to be sure, but it would be an essential and wonderful debate -- a debate worthy of the America we are trying to protect. Thank you very much.

(Applause.)

So, now I'm sitting down.

COHEN: Now you sit down.

HARMAN: I'm sitting down now. I'm down.

COHEN: All right.

HARMAN: And by the way, that's Hillary who's now -- you're not walking out! I already mentioned her. Her baby was due last Wednesday, and grandma-to-be is very anxious here. Where are you going? (Laughter.)

COHEN: Could you boil some water, please? (Laughter.)

HARMAN: She'll be back.

HARMAN: I started a big conversation. Now everybody -- (scattered laughter).

All right.

COHEN: All right, we have about a half hour.

HARMAN: Okay.

COHEN: And I'm going to eat up some of it and abuse my authority as the moderator by asking --

HARMAN: No cruel, inhuman or degrading treatment. It's the law now --

COHEN: No, no. I'm going to ask a two-part question which I'm not going to permit anyone else to do when I go to the floor. I'm interested in whether you fear that as a result of the Iraq war we will now go into a version of the Vietnam syndrome, which paralyzed American foreign policy for so long. And secondly, the second part of it is, if we do, is it a big deal vis-a-vis Iran? Is the Iran threat as formidable as we are being told it is?

HARMAN: Well, Iran was always the bigger threat, bigger threat than Iraq, and I think most people who've studied this -- I don't know -- I'm looking at Richard. Do you agree, Iran was -- yes, he does. I know he does.

HARMAN: I know, but I'm -- it was -- Iran was always the bigger threat. The administration persuaded me and many others that Saddam Hussein had weapons of mass destruction and had become an imminent threat. His disregarding of all the U.N. resolutions made him -- and his ability to stockpile these weapons and his intention to use them made him an imminent threat, and so we went into Iraq. Hindsight is always better, but looking back, we've spent four years -- three years mired down in Iraq because of, in my view, of poor postwar planning, and then that has caused us to take our eye off Iran.

So now where are we? You are right that there is, certainly in the Democratic Party, a growing fissure between those who think we should exit immediately and those who -- I don't think the bandwidth is huge -- those who think we need a strategy to exit. I'm in the second camp. But it is a fissure, and a lot of the memory is of the Vietnam War and the mistakes that we made there.

I don't think Iraq is the same as Vietnam, but I think this growing divide is very dangerous -- dangerous because it, again, keeps our eye focused in the wrong place. I think we should seriously be looking at the threat Iran poses and coming up with a very good strategy to confront that threat. And if you want to ask me about that -- I don't know if that's your second question -- I think that's a tough one, and we've lost three valuable years. I have asked to see the intelligence on Iran, the intelligence that we have circulated to the IAEA and elsewhere, and I must say -- I'm not going to describe the intelligence, but I'm skeptical.

I don't want us to repeat the mistakes we made in Iraq. I don't want this to be curveball, the sequel. (Light laughter.) And it is very important that we get the intelligence right, because that will shape what our responses should be. I'm pleased that the issue will be before the U.N. Security Council. I think that's where it should be, but now the U.N. Security Council has to take meaningful action.

COHEN: Let me ask just one more question. When you go back to the run-up to the war, and -- which you supported -- and look at it, and you say you were, in effect, deceived by bad intelligence, that's approximately right. But at the point before the war started, it was quite clear to everyone that Iraq had no nuclear weapons program at all, because that was easily verifiable, or relatively easily verifiable. I mean, the U.N. had come back and reported -- ElBaradei had reported that what was left was chemical and biological. Why did chemical and biological, which had been around for a long time, loom so large to members of Congress who gave George Bush permission to go to war?

HARMAN: Well, a couple of points. First of all, the resolution we all supported was a process, and the process was to make a maximum effort through the U.N. to get the resolutions enforced and only as a last resort to wage war. I just point that out. I don't think it was a direct declaration of war and, frankly, my thought was that phrasing it that way would give us more leverage (in ?) the U.N. And I did believe that Saddam Hussein would blink. And I think if this had gone on longer, if the war action hadn't started when it did -- and everyone should read the information in The New York Times today about what the generals were saying at the time -- if the war action had started later, we might have been able to come to a diplomatic conclusion.

But the information that we saw, which Colin Powell described for the U.N., did show nuclear capability. I t wasn't just biological and chemical. There was an issue about what the centrifuges were and how advanced they were. But remember Condi Rice and, you know, whatever, the action in the form of the mushroom cloud? So the administration's case was that he had the intention of getting nuclear capability and he had some of the capability already. The biological threat was in the form of these mobile vans. Biological weapons are extremely deadly. I mean, most people who've studied the biological threat to the U.S. are worried about re-loading -- the fact that you can repeat the germs and you can spread them, and that's a very serious thing. And that was deemed to be his most advanced capability. And then we knew he had used chemical weapons effectively on his own people.

So looking back, it's easy to -- it's not easy, but, you know, I surely understand how our intelligence products got it wrong. But it wasn't just ours; the whole world bought into this bad intelligence case.

COHEN: And briefly, one last question from me, and that is --

HARMAN: He's hogging all the --

COHEN: No -- well, I -- this is my last one, and you can answer it briefly. After it was revealed that there had been these NSA intercepts, there was a leak of some sort from the FBI saying that this was just a lot of busy work for them and junk. Is that your assessment, or would you differ with it? Is this a valuable program?

HARMAN: Oh! There was -- you know, the newspapers claimed that -- that's right -- that some of the referrals, most of the referrals to the FBI have not amounted to anything. I don't know what that was referring to. I believe that collecting intelligence abroad on al Qaeda and al Qaeda affiliates is a key to preventing and disrupting plots against us. The way we collect this intelligence -- and I'm not going to go into sources and methods, but it's been all over the newspapers -- intercepting various forms of communication, which sometimes end up talking to a U.S. person in some fashion, I think is critical. The program needs to fall within the legal framework we've set up: FISA. Collecting abroad on foreigners doesn't have to comply with FISA, but when it intersects a U.S. person, it does. And yes, I think it's a valuable idea when done consistent with our laws and our Constitution.

COHEN: Thank you.

In the back?

HARMAN: Hi.

QUESTIONER: How are you? With recent allegations going back to Iran about -- that Iran is responsible, possibly responsible for the increasing lethality of the attacks on our U.S. troops over there, what would be your suggestion for the legal framework that we'd use in regard to that specific issue?

HARMAN: Well, the president talked today about something on which I was briefed when I was last in Iraq, and that is Iran's work on developing increasingly lethal improvised explosive devices and making certain that those devices are exported into Iraq. I think that's true, and they are enormously lethal. These new -- the new form can penetrate -- I didn't hear the president's speech today -- but can penetrate, you know, our heaviest armor. And so this is a very big deal. And is Iran part of the insurgency in Iraq? You bet. And would Iran take more advantage of this if the place implodes into civil war? You bet. It would be a bigger sandbox for Iran.

And I think you're asking me what legal framework do we need. Well, with respect to that, we need the ability to focus on Iran. We need the ability to use our diplomatic tools to maximum effect in Iran. And oh, by the way, the only solution in Iraq now, ironically, after our military action, is a diplomatic, political solution. Unless we can help the Iraqis forge true power sharing across the three ethnic factions and then develop the ability to provide for the security -- provide for their own security, not relying on their individual militias, we're not going to have a viable state in Iraq.

By invading Iraq, we created a hollow state, or a failed state, and unless we can get this done, help the Iraqis get this done, I think the consequences are going to be enormously serious in terms of allowing Iran to expand its power in the region and destabilize places like Jordan and, obviously, Israel.

COHEN: Caroll?

QUESTIONER: I'm Carroll Bogert from Human Rights Watch. I have a question about the Army Field Manual which, as you know, has for decades been quite a good document, very strong provisions about the treatment of detainees, for example.

HARMAN: Yeah.

QUESTIONER: The problem with the McCain legislation and the recent avowals to follow the provisions of the Army Field Manual is that the Pentagon is in the process of revising it.

HARMAN: Right.

QUESTIONER: If they revise it with a secret annex that none of us can read, you may be one of the only people who gets to read it. Could we hear from you your plans, please, to defend the standards that America has held to over many decades for detainee treatment?

HARMAN: Well, McCain picked what was available. As I said, there was no ability to craft a nuanced solution, because we were -- Congress was stonewalled by the White House. And so he picked what was there. The Army Field Manual has provided good guidance to the Army in terms of interrogating folks. So then, of course, what happens -- exactly what you described -- the Pentagon announces it's revising the manual and creating a classified annex.

I haven't seen the classified annex. My view is, as I stated, that the intention of the law is clear, and if there could have been a better law, the White House blew the opportunity to help craft that. So I'm going to make sure that we enforce the law. And I can't tell you what that means yet since I haven't seen the materials. But as I mentioned earlier, the president, in his signing statement, said he reserves the right to apply, basically, his inherent authorities, possibly to do something different. I think that that's not appropriate.

COHEN: Ted?

QUESTIONER: My name is John Adams, aka Ted Sorensen. (Laughter.)

HARMAN: You bet.

QUESTIONER: I'm wondering why my colleagues -- I'm wondering why my colleagues Hamilton and Madison didn't cite two other provisions of the Constitution that we worked so hard on. First, they cited the fact that the Article I powers of Congress comes in order first before Article II, powers of presidency; that is relatively unimportant. But as those of us who worked hard in that Constitutional Convention remember, the people of the United States and the states of the United States at that time would not ratify Article I or II or III or any of the others until there was a Bill of Rights attached to it conditioning all of those articles and, therefore, the Fourth Amendment to the Constitution conditions Article II and any claim that Article II powers override that is just absurd.

Secondly, I am surprised that Mr. Madison didn't recall -- (scattered laughter) -- that there is a --

HARMAN: It's Ms. Madison.

QUESTIONER: -- that there is a provision in that Constitution for getting rid of a president who has committed high crimes and misdemeanors. Isn't that the ultimate check on presidential violations of laws?

HARMAN: Well, thank you for that, John Adams. I do appreciate it.

No one, unless -- let me ask Jeremy Bash if he's heard it. No one has made that argument about the Fourth Amendment in all of the briefings we've had. And I do share your view that the Fourth Amendment limits the Constitution, but no one has argued it quite that way, reminding us that the people conditioned ratification on the passage of the Bill of Rights. And I'm planning to steal that, thank you very much, President Adams. (Scattered laughter.)

On the other issue, the impeachment issue, the other check on presidential power is called an election, and so we have two forms of checks. And I think, I really do think that the Dubai ports issue has -- it has something to do with ports, but it also has to do with Congress pushing back in an election year, saying we're not going to be cut out of this. The security issue is too important, and we have knowledge of this issue and we intend to be consulted. And I think that was a big part of the pushback, and I think we're now going to see it on the NSA program, as well. So I'm hoping it will be constructive pushback.

As I said, I'm pushing for everyone to get fully briefed, for us then to look at FISA in a detailed way. I believe the emergency provisions under FISA as presently drafted can and must cover this program. And if we can get that done, I think that that will be an important outcome and a very important signal to a White House that, I guess, thinks that Congress is an afterthought only if they can't get by with their own decisions written by their own lawyers about the authorities that they want to exercise.

COHEN: Lucy?

QUESTIONER: Lucy Komisar, journalist. To follow up what Ted was saying, based on what you indicated about how the president really has finessed the legislation on torture, based on what Sandra Day O'Connor said the other day about a slippery slide toward dictatorship, which makes people think about 1930s in Germany, why shouldn't we take the route toward impeachment for a president who has, in one example after another, violated the Constitution? What is the impeachment process for, if not for that?

HARMAN: Well, some people feel strongly inclined to do that. Where I sit in Congress, my view is to take advantage of this moment to force the executive branch to abide by the laws that we've passed. And I'm working on that. I think that that will be a bipartisan outcome that will be broadly supported by the American people. I remember a very partisan impeachment process just a few years ago. I served in Congress, and I strongly opposed the efforts to impeach President Clinton, and I -- I think that's a subject that may get some traction. But with Iran the threat that it is, Iraq bordering on implosion, I want to get through this crisis as fast as we can and make certain that our Constitution and our laws are observed. And we'll see where the impeachment idea goes, but I think at the moment, it will not promote bipartisanship.

COHEN: Yes, sir.

QUESTIONER: Hi. Michael Behringer, Primedia. You had commented that the administration's failure to engage on the McCain-Graham amendment and the rushed manner in which it was hurried through, that it didn't permit for a more nuanced solution to the issues. You touched upon this a little bit with the discussion on the field manual, but I was hoping you could elaborate on where you saw the shortcomings and where there was room for improvement. And specifically with respect to, I think, the very hard line that the vice president's office took in looking for exceptions for CIA personnel, whether there was room for a second set of guidelines; one that would apply just to military, and one that would apply specifically for trained professionals in the CIA.

HARMAN: Well, again, to deal with the Fog of Law problem, you really have to set clear rules, and it shouldn't matter whether you're a CIA person, an Army person, a Navy person, or whatever. There has been for a long time a federal law and an international convention against torture, so that needs to be very clear. With respect to cruel, inhuman and degrading treatment, there is a need, I think, for one definition to apply across.

McCain took the tool that he had, which was this field manual which has provided guidance, and applied it to everyone because, again, there was no opportunity to craft something more nuanced. So I think McCain did the right thing, which is why I introduced the McCain bill in House. The problem with Graham-Levin is that they crafted a solution for how you challenge detention, which is you go to a court of appeal. It's not habeas corpus; they made that decision, that it could be a different form of challenge. But you don't have a right, when you're challenging why you're detained, to challenge whether or not you're being treated consistent with the McCain amendment. So the challenge, by being very limited, prevents them from --

I mean, it's kind of interesting. Congress passed two laws that don't exactly dovetail, even though they were presented at the same time. And that's why we need this legal commission. Sandra Day O'Connor should definitely be on it. I certainly agree with her, she wrote in the Hamdi decision, which the administration quotes all the time as another one of its legal justifications for the NSA program, that the president's power is not absolute.

But how do we craft better rules? We need better brains focused on this for a longer period of time really trying to solve the problem and working together, and that is hard to do in a Congress that has the kind of partisan polarization that this Congress has.

COHEN: Yes, sir.

QUESTIONER: Peter Belk, Venable. I just wanted to pick up a little bit on this theme of accountability, and somewhat short of, say, impeachment. I was in the corporate world, we had Sarbanes-Oxley, and one of the goals of Sarbanes-Oxley is to ensure that accountability goes all the way up to the top. How do you see ensuring that accountability for whatever it comes to, say torture or other acts of that kind, doesn't just stop at the, quote, "few bad apples," end quote?

HARMAN: Hear, hear. You know -- first of all, the rules have to be clear. But second of all, I think it has been woefully unfair to punish the lower end of the spectrum for the abuses at Abu Ghraib and other prisons and not to take responsibility at the top. I've been waiting for our secretary of Defense to say it happened on my watch, it's my fault, I've submitted my resignation to the president, this is a moral black eye on America. And I haven't heard those words, and this is not a president who fires people.

COHEN: Yes, sir.

QUESTIONER: This is a naive question, but assuming -- my name is Stephen Flesch; I'm with Eisner. Assuming there was an impeachment, would that mean that the current vice president would become president? (Laughter.)

HARMAN: Well, yes, if they only impeached the president. That actually has been raised.

Look, I'm not saying that -- (continued scattered laughter). I think that -- the latest suggestion was by Senator Feingold this morning, that we censure the president over these programs. We'll see where this all goes. There's a lot of anger in the country, and certainly the Democratic Party, as was pointed out by Richard, is enormously split on what course of action to take. But I think, in the short term, with the world as dangerous as it is, the better idea would be to come together to solve the problems, and force this executive branch to abide by the law and the Constitution.

QUESTIONER: I'm confused on one thing about this impeachment business. Exactly what committee is going to vote out an impeachment bill?

HARMAN: Well, the Judiciary Committee in the House impeaches.

QUESTIONER: But I mean, the last I looked, the Republicans controlled both -- right?

HARMAN: That's right. That's right. So, I mean, you're saying the Republicans won't vote for it?

QUESTIONER: Yeah.

HARMAN: I think that's probably right.

QUESTIONER: Right.

HARMAN: I think it would become a partisan football, as the impeachment of President Clinton was.

QUESTIONER: There is already a resolution in there, isn't there, in the House, by --

HARMAN: There may be. Is it Conyers? Conyers?

QUESTIONER: From Detroit. John Conyers, right.

HARMAN: No. There's been conversation about it. I don't know that any action's been taken.

QUESTIONER: Oh. All right.

COHEN: Sir, in the back.

QUESTIONER: Jim Dingeman from INN World Report. Congresswoman, the public was educated during the Alito and Roberts hearings about this unitarian-branch-of-government theory, and in your statement you talk about the need to have a co-equal relationship, as stated in the Constitution, between the House and the Senate and the executive branch, yet we have this theory of government that essentially is sort of an imperial theory. How do you see this unwinding down the road here?

HARMAN: Well, I hope it -- I hope we can restore more balance among the branches of government. Let's not forget the courts. A lot of these cases are in the courts. I mean, this NSA program is in the courts; some of these detention issues are in the courts. It was the courts that insisted, at Guantanamo, for example, that these detainees without status had a right to counsel and a right to challenge the status. This was before Congress acted to pass the Levin-Graham amendment. So I said that some call this a constitutional crisis. A Republican, Lindsey Graham, whom I have great respect for, calls this a Marbury-versus-Madison moment. I don't know how this will unwind, but I think the pushback has started, and the Dubai ports were the first evidence of that.

I think Republican members of Congress are beginning to realize that this unitary theory is not only damaging, I think, our role in the world and violating, in some respects, provisions of our Constitution, but it's damaging them. And a huge motivator in an election year is feeling that your president is causing you election grief, and I think that we're going to see more pushback by Congress on a bipartisan basis. Exactly where this goes, I don't know, but I think that is why the White House is now working with Republican senators on some legislation for the NSA program. So I said I think that legislation's premature, but the reason it's happening is because those senators are not prepared to buy the -- you know, the executive inherent-power theory any more.

QUESTIONER: Zachary Karabell, Fred Alger Management. On the ports issue, I wanted to ask you about -- and it may be that Congress has pushed back effectively and asserted its authority, but where does that leave homeland security and port security? I mean, simply nixing the ports deal does not suddenly make our ports more secure.

HARMAN: Absolutely right.

QUESTIONER: And I'm wondering, does anything happen as a result of this, or does everyone go away feeling like they've asserted some notional authority and, meanwhile, because no voters walk through ports -- they only walk through airports -- nothing happens?

HARMAN: Well, they walk through ports in my district, which is where the ports of L.A. and Long Beach are, the largest container ports in the country -- 14 million containers a year go in and out of there. But here's the point:

The pushback was about Congress not being consulted in a process that made mincemeat out of security. I actually was able to interview some of these decision-makers in this CFIUS process last week, each of whom had a little piece of turf which was all that that decision-maker could consider, in terms of threats to our security. Result: nobody considered the bigger picture. Nobody understood that foreign ownership, basically, of most of the terminals in 20 ports -- it isn't just six ports, including some military ports -- might pose some security issues.

I'm not against foreign ownership of ports, of terminals at ports. In Los Angeles, the Port of L.A., the Koreans own a terminal, the Chinese own a terminal, the Taiwanese own a terminal, but in each case, it's a terminal, and the issue was fully vetted. In this case, it was like a takeover. So the first place Congress has to push back is in changing the CFIUS law so that more attention is paid at a higher level with the whole picture being understood.

The second place Congress has to push back, and it is going to do this, is with a comprehensive port security program, which is not just more money -- although money matters -- but it is a strategy for how to protect our ports, and it starts abroad with making sure we know what's going into containers at the points of embarkation, and we make sure that containers are not tampered with, and we make sure, even when they're off-loaded, that they are the right technologies that make certain that there's no radiation, et cetera. And we have pieces of this already, but now we have to put them together in a more comprehensive system.

There is a very good bill that's been introduced on the Senate side, and I am working on a bipartisan basis on the House side to put something similar -- to introduce something similar -- tomorrow, as a matter of fact. And I think the chances for a comprehensive approach passing the Congress are very high, and that will be a very good outcome out of the Dubai port issue.

COHEN: In the back.

QUESTIONER: I'm interested in the -- this is Ted Schell (sp). I'm interested in the related issue having to do with the NSC thing. How is it that we get into a situation where Congress is totally ignorant, or only a handful of hand-picked people are totally ignorant of the program, and then when you look on the other side of it and you see what appears to be a rather savage attack -- let's say an aggressive investigation -- into the leaks, which is really aimed at intimidating people from ever speaking up to the press, and you have a system within the bureaucracy where if anybody opens their mouths, they know perfectly well they're going to lose their job, even if they go the inspectors general, which appears to be the case. How do we bust out of this and get some transparency into these kinds of things so that we can rely on the checks and balances or some process that, in fact, keeps us safe from the type of aggressive or, let's say, unitary approach to government that's being espoused?

HARMAN: That's a very good and very tough question. First of all, the NSA program was not known to you because it is a highly classified program and if the whole program is fully understood, and I don't think it yet is, it will compromise our ability to collect critical foreign information on al Qaeda and its affiliates. Now, again, remember, I think all of it has to be consistent with law. I don't want to say anything that implies that I don't think that. But that's why you didn't know about it.

What about -- why are we inhibiting those -- you know, why are we focusing on leakers? Well, I think we should focus in two ways, and let me talk about leakers in a minute. First of all, we should focus on making sure that program fully complies with the law. With respect to leaks, leaks of classified information are illegal; however, we have two things in the executive branch which we need to protect better than we do. One, we have a whistleblower law, which is a very valuable law, and it should enable people to be protected when they believe that they have found abuses of power. And I think that people who felt this NSA program was not complying with the law should have felt that they could be fully protected under the whistleblower law.

Secondly, we do have these inspectors general in the various departments, and you are right that, one, they do good work, but two, people feel that if they talk to them, in some departments those who talk to them are compromised, and so they don't use them. And so we need to work harder at making sure that the whistleblower law works and the IGs can get information from employees in their departments and those employees will be protected. We need to do both of those things.

Going after leakers may be important to do, if we're compromising core capabilities, but we should never do it unless we're fully enforcing those other procedures. And finally, I strongly support the press shield law. I don't think that the press should be required to reveal its sources.

COHEN: Yeah, but the first part of the question was not why we don't know about it. Why didn't anybody but a small handful of people in Congress know about it?

HARMAN: That was wrong. The full intelligence committees should have known about it. There was a violation of the National Security Act. Why didn't I do more about it? I've been asked that, because I was on this gang of eight. I came into the briefings halfway into this. You become a member of the gang of eight when you're a ranking member on the intelligence committee, or chairman, and I was appointed to that position in 2003. The briefings were on the operations of the program, they were not on the legal underpinnings or who should be briefed, and the problem I had, for better or worse, was if I had come out of those briefings and asked Jeremy Bash or anyone on our committee or any other member of the committee, gee, do you think that this is the proper way to be briefed on this program, I would have violated three federal statutes. And I think the gang-of-eight process, after this experience, is a severely flawed process, and certainly inappropriate for a foreign collection program.

COHEN: Thank you all very much. We're out of time. Thank you for being here tonight. We really appreciate it. (Applause.)

 

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