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Texas Senator John Cornyn on the NSA and SWIFT legislation, and the consequences of the exposure by the New York Times.

Tuesday, September 12, 2006

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HH: Joined now by United States Senator John Cornyn of the great state of Texas. Senator, always a pleasure to speak with you.

JC: Thanks, Hugh. Good to be with you.

HH: Senator, a couple of major bills are now pending that the President has asked for Congress to move rapidly on. Hamden, detainee authority, and on NSA surveillance of al Qaeda contacting their operatives in the United States. Where do both bills sit as of today?

JC: Well, we’ve been working very diligently on trying to come up with a consensus approach to the detainee military tribunals that the Supreme Court held were not authorized unless Congress participated in the formation of these tribunals. And so, we’re trying to do that. The NSA terrorist surveillance program has been stuck in the Senate Judiciary Committee, and our friends on the other side of the aisle have been dragging their feet and blocking our ability to get that out of Judiciary Committee, and get it on the floor.

HH: Now how can they do that, Senator Cornyn, given that you’ve got a 10-8 majority in committee?

JC: Well, it’s…what they’ve done is they’ve very expertly used the rules which allow senators to object if a committee, if we’re in session, the committees can’t go more than two hours if a senator objects. And so what happened, basically, they fill it up with making statements and offering amendments, and then we run up against that two hour time limit, and someone objects. I know it’s kind of getting down in the weeds, but it just demonstrates how hard it is, or how easy it is, rather, for an individual senator to gum up the works, and that’s unfortunately what we’re seeing.

HH: Now Senator Cornyn, what alternatives do you have to get the NSA bill drafted, largely by Senator Specter, and largely recognizing the President’s Article II authority to order this anyway. How do you get it to the floor?

JC: Well, we have another trick up our sleeve, and that is the majority leader can actually discharge the Judiciary Committee’s consideration of the bill, and bring it up directly to the floor, and I’m confident that if we’re unable to vote it out of the Judiciary Committee this week, I’m pretty confident that that’s what the majority leader will do. So we’ll get it on the floor and get to it, as we well should.

HH: Do you expect a filibuster, John Cornyn, when it hits the floor?

JC: I think they’ve…I think the opponents have a real hard time mustering sufficient number of votes to filibuster the bill on the floor. I mean, we are, obviously, Hugh, at war. This is a matter of obtaining battlefield intelligence over the phone lines from al Qaeda operatives overseas, and their confederates in the United States, clearly within the President’s Constitutional authority under Article II, and something that Congress ought to work with the President on, not treat him as an adversary and sort of get into of a turf battle with him. I think this is something the American people want to see us do, and want to see Congress working together to make Americans more safe.

HH: You know, Senator, since this program was revealed by the New York Times in December of last year, there’s been quite a lot of debate about it, one court ruling in Detroit by Judge Diggs Taylor. Has any of that debate changed your mind that the President is acting wholly within his Article II Constitutional authority?

JC: Not at all. As you know, Hugh, there have been a number of opinions, including from the Foreign Intelligence Surveillance Court of review that was created by Congress to review these important matters, acknowledging the President’s authority under the Constitution, and so I feel very confident of that, and I feel confident that Judge Taylor’s decision, her judgment will be overruled, or reversed on appeal. Part of the problem is, and what we’re going to try to solve by passing this new piece of legislation, is to prevent judge shopping. What we’re seeing is the American Civil Liberties Union and others are literally scouring the nation, looking for sympathetic federal judges who are likely to do what Judge Diggs Taylor did, and that is to frankly ignore the law, ignore other reported authoritative decisions, and render what in essence is a political judgment. And hopefully, we’ll bring that to a conclusion by concentrating, consolidating all of those lawsuits in the FISA Court, Foreign Intelligence Surveillance Court, created by Congress.

HH: Excellent idea. Now Senator Cornyn, just recalling that New York Times story, do you believe the New York Times story injured the national security when it revealed…

JC: I do.

HH: How so?

JC: Well, clearly our enemies read the newspaper, they listen to our radio and TV, and because so much of what this war is is a war to undermine public confidence in America, they can’t beat our military. Our military’s the strongest, most professional, most competent military the world has ever known. All they can do is to undermine public confidence, and cause us to quit. And that’s what this is about. So our enemies are also using technology like cell phones, satellite phones, and others that are susceptible to surveillance. But when they find out that through the New York Times article and the like what we’re doing, they’ll simply avoid those modes of communications, and go to something else that they think is more secure. So that’s the problem.

HH: In the most recent issue of New York Magazine, New York Times’ Bill Keller, the editor-in-chief there, executive editor, writes, “They pissed me off. I think the administration is genuinely distressed that we ran the story over their objections. I think they were embarrassed by it, by the fact that this is the most secretive of administrations, has so much trouble keeping secrets. I think they were probably sincere in their anxiety that publicizing this program might jeopardize it, and you know, that’s all fair. But when they stir up a partisan hatefest, and impugn your integrity and patriotism, that is, to borrow a word from the White House list of talking points, disgraceful.” How do you react to that defensiveness on the part of Keller, John Cornyn?

JC: Well, no one elected Mr. Keller to make those decisions. You know, this is a violation of the Espionage Act for people to leak this kind of information. It’s subject to debate in legal circles, as you know, Hugh, whether it’s an indictable offense to publish it. But leaving all that aside, clearly you would think that Mr. Keller or the New York Times would have some, lend some weight to national security, would be concerned to some extent about arming our enemies with information they can use to evade our surveillance techniques that no one has said they want us to quit, because everyone acknowledges, despite the partisan bickering, that they’ve been successful in detecting and disrupting and deterring terrorist communications.

HH: Does the same go for their SWIFT story?

JC: Absolutely. Just…I think it’s absolutely shameful. I would hope that folks at the New York Times would be patriots first, and then journalists second. But unfortunately, some people feel eminently justified in reporting anything and everything, without regard to the negative consequences on national security. And I think that’s a real, frankly, very disturbing.

HH: You know, Bill Keller’s so upset about this SWIFT story blowback, and the NSA story blowback, let me ask you the hardest question. Do you think terrorists eluded capture because of those stories, John Cornyn?

JC: I’m confident that they have. I know the general, Mike Hayden, who’s now the director of the Central Intelligence Agency, has testified that disclosure of the National Security Agency’s terrorist surveillance program has had negative consequences on our national security. People know now what we’re doing. They will avoid using those modes of communication that could be subjected to this program. And I have every confidence that as far as the SWIFT program, the terrorist financing mechanism that we’ve learned the routes that terrorists finance their operations, and how the money travels through international financial circles, that now that they know that that’s being used, they will choose an alternative method of sending the money.

HH: John Cornyn, Senator from Texas, thanks for the update. Good luck in getting that legislation to the floor and passed. We’ll talk to you again soon.

End of interview.

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