MR. RUSSERT: …people go back to, Democrats and Republicans, many, to the law, and they’ll say the law is very clear: You cannot engage in this activity unless authorized by statute. …do you believe that the authorization to go to war, passed by Congress…September 15, 2001, to go into Afghanistan, to take out al-Qaeda and the Taliban, that authorization granted the president the authority for this eavesdropping program?
MR. RUSSERT: Senator Daschle, you wrote an opinion piece for The Washington Post about the debate leading up to the war. And I want to read through this very carefully because it is part of the history, legislative history, and come back and talk about it. You write, “On the evening of September 15--September 12, 2001, the White House proposed that Congress authorize the use of military force to, quote, ‘deter and pre-empt any future acts of terrorism or aggression against the United States.’ Believing the scope of this language was too broad and ill-defined, Congress chose instead, on September 14, to authorize, quote, ‘all necessary and appropriate force against those nations, organizations or persons the president determines planned, authorized, committed or aided’ the attacks of September 11. With this language, Congress denied the president the more expansive language—more expansive authority he sought, and insisted that his authority be used specifically against Osama bin Laden and al-Qaeda. Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’in the agreed-upon text.” This would be the proposed wording from the White House, “all necessary and appropriate force in the United States and against those nations, organizations, persons the president determines planned, authorized, committed or aided the terrorists attacks that occurred on September 11.” Back to your piece. “This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.” Did anyone mention eavesdropping to you when they sought to change that language?
SEN. DASCHLE: They didn’t, Tim. Tim, there were actually two pivotal moments. That was one, what should be the scope of the president’s authority as we told him to. He had our complete support in using all necessary means. And the article lays it as clearly as I know how to lay it out. We said “concerning activities abroad,” not within the United States.
But there was a second pivotal moment. And that was in December with the reauthorization of the intelligence legislation that comes before Congress every year until this year. But—and that specifically dealt with the president’s request to change FISA. We said to him, “Look, if FISA isn’t working to your satisfaction, what would you have us do?” And we did two things. One was we gave the president retroactive authority. There isn’t any requirement today that the president go before FISA before the action. They now have 72 hours to act and then can come back retroactively and ask FISA to make a decision. And they don’t—there’s no vote required of the FISA court. One judge has the ability to do that. So we changed it from 24 hours to 72 hours and we made it retroactive.
…The final thing I’d say is, up until then people cited the Constitution as the sole authority for making these actions. Now since FISA, you can’t do that. FISA, constrained—or clarified the Constitutional authority, and that’s exactly what we did again in December of 2001.
REP. HARMAN: …I remember all those efforts to change FISA. We asked the president if he needed more authority. He’s the one who requested the 72-hour delay, longer than 24 hours, which had been the standard before. He requested that it extend to roving wiretaps and e-mails, all the modern communications methods. It’s not a quaint statute. FISA lawyers say it takes less than a day to prepare a filing, and they can be prepared orally in an emergency.
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At least Clancy took a shot at making serious predictions.