'He Admitted to Breaking the Law'


J$P Instant Transcript! The Judge debates David Rivkin on the legality of NSA surveillance.



From The O'Reilly Factor, December 18 2005:

BILL O'REILLY [FOX NEWS]: Joining us now from Washington, Dave Rivkin, former White House counsel, Presidents Reagan and Bush the elder. And here in the studio, Fox News senior legal analyst Andrew Napolitano. So you want to send Bush to jail, right?

JUDGE ANDREW NAPOLITANO [FOX NEWS SENIOR JUDICIAL ANALYST]: No, I don't want to send him to jail. We haven't seen the so-called secret legal memo on which he relied. But we know the following. Yesterday he admitted to breaking the law--

O'REILLY: No he didn't--

NAPOLITANO: --because authorizing wiretaps without search warrants is against the criminal law.

O'REILLY: He said--but hold it. He said, you just heard him say, within the constitution, within the law.

NAPOLITANO: He's wrong. It's not within the constitution, and it's not within the law.

O'REILLY: He may be wrong, but he did not admit to breaking the law. Let's be precise.

NAPOLITANO: Not per se. He admitted to doing the acts which resulted in authorizing search warrants--excuse me, authorizing wiretaps without search warrants, which is prohibited by the 1952 law that creates the NSA, and is prohibited by at least three statutes written by the Congress since then.

O'REILLY: All right.

NAPOLITANO: The President doesn't write the laws. He has to execute them, whether he agrees with them or not.

O'REILLY: His people, his people, and I don't know, I have to tell the audience I mean don't know. I mean, Napolitano is much smarter than I am. But his people say the War Powers Act gives him the legal authority to do it. And, it's because it's an international taping situation, not domestic. These calls were going all overseas. And the third thing is the national security, which as you know Congress gave him the authority, broad authorities, to fight the war on terror. So he signed an executive order it seems like. And he didn't actually say to the NSA tap this one, that one, and the other one. They just did it, OK, under the authority that he gave them.

NAPOLITANO: He does not have the authority to relieve them of the obligation to obey the criminal laws.

O'REILLY: All right, that's what you say. Mr Rivkin, what do you say?

DAVID RIVKIN: Much as I hate to say it, Judge Napolitano is completely wrong. He's talking primarily about Foreign Intelligence Surveillance Act that does seem to require a warrant from a FISA Court in this situation. What the Judge is missing is the President has inherent constitutional authority under Article II of the constitution as Commander in Chief. That power entails in time of war, and it's particularly formidable in time of war, an ability to gather intelligence on our enemies. We're talking about gathering intelligence, intercepting communications of the very same people we're at war against. If a President doesn't have constitutional power to do it, his title as Commander in Chief is meaningless.

O'REILLY: All right but, as you know Mr Rivkin, no war was ever declared, all right? So he didn't go to Congress for a declaration of war. He is, as you pointed out, citing the War Powers Act. But there's no official war, is there?

RIVKIN: But Congress did authorize the use of force a few days after September 11th. In fact you know what Bill, it's interesting, it's not even a close question. We have a combination of a President's plenary powers as Commander in Chief under Article II, and Congressional authorization to use force. Both political powers have spoken in concert. This is legal. The FISA statute has nothing to do with it. It's just apples and oranges.

O'REILLY: But his tap--let me ask you this, and I want to get very precise. I scolded the Judge for being imprecise, and I want to be precise with you. I don't think that eavesdropping on conversations that civilians have is using force of war. It's not a military campaign, is it?

RIVKIN: You're absolutely right, Bill. If he was eavesdropping on a conversation involving you and me, even if you were in Canada and I was here, you're right. But remember how it works. You said international communications. We take down a member of Al-Qaeda overseas. We look at his personal computer, look at his mobile phone. We discover what numbers he's calling. If you want a World War II analogy, this is no different from taking down a German military officer and looking in his code book to see with whom he's communicating. This is intelligence gathering in a context of ongoing combat operations. This has nothing to do with spying on civilians.

O'REILLY: OK, let the Judge reply to that. Go.

NAPOLITANO: When Richard Nixon argued that he could spy on Americans because they were a threat to national security, the Supreme Court rejected it nine to nothing. And said the fourth amendment applies.

O'REILLY: It was a different situation.

RIVKIN: Absolutely true.

NAPOLITANO: Of course it was a different situation. But you can't call someone a terrorist, and thereby authorize people to go above the criminal law just because of what you call them.

O'REILLY: All right, but it's important at this juncture to point out that this wasn't some cherry-picking operation. That the NSA wasn't spying en masse on Americans calling overseas. These were targeted people, suspected, suspected of having--

NAPOLITANO: Americans who have the fourth amendment protection that the President is abrogating. And he can't do that.

O'REILLY: In the War Powers Act, though, he can abrogate it

NAPOLITANO: No, the War Powers Act does not allow him to abrogate the fourth amendment. And when he's the Commander--

O'REILLY: Sure it did. Lincoln did it in the Civil War, you know that.

NAPOLITANO: Lincoln did it in the Civil War, and the Supreme Court condemned it nine to nothing after Lincoln was dead. The case is In Re Milligan.

O'REILLY: Go ahead, Mr Rivkin.

RIVKIN: Just one thing. We don't even know if these people are Americans. Think for a second about how it works. We have a foreign terrorist, a member of Al-Qaeda. We see that there's American phone number, with a prefix 202. It's absolutely not clear from that if this person's an American.

NAPOLITANO: Why doesn't the President go to the FISA Court? The FISA Court was written for this very purpose?

RIVKIN: I will tell you, no. No, you're wrong. FISA statute was written--and by the way, President always had plenary power to do it. FISA statute came and regulated one particular aspect of it. Domestic primarily, and in a situation where you can move fairly slowly. This is kind of cold war style espionage. You think that some member of a foreign embassy is a spy, you take a couple weeks to get a warrant, and you know each person you're dealing with.

NAPOLITANO: It doesn't take a couple weeks to get a FISA warrant. It takes about 15 minutes and the President knows that.

O'REILLY: All right, OK. We're not going to settle it tonight. But I think it's so complicated that nothing will come of it. Just my prediction. Nothing will come of this.

RIVKIN: But let me just say this--

O'REILLY: Real quick.

RIVKIN: --what's sad is that everybody is jumping to the worst possible interpretation.

O'REILLY: Of course, but that's what everybody does Mr Rivkin. Come on.

NAPOLITANO: Hey, he's the President, he's not a king. He's got to obey the laws like the rest of us.

O'REILLY: All right, the Judge will be deported right after this broadcast for sure. And we'll fight to get you back though, Judge. We'll fight to get you back.

NAPOLITANO: [laughing] That's very good of you, Bill.

O'REILLY: Gentlemen, thank you.

posted: Sun - December 18, 2005 at 09:20 PM       j$p  send 
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