INTERVIEW TRANSCRIPT

C-SPAN’S “NEWSMAKERS”

Guest: Assistant Attorney General for National Security, Ken Wainstein

Reporters: Eric Lichtblau, New York Times and

Tim Starks, Congressional Quarterly

Moderator: C-SPAN

TAPE DATE: Thursday, March 6 2007

AIR DATE/TIME: SUNDAY, March 9, 2007 at 10 a.m. and 6 p.m. ET

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CONNIE DOEBELE, C-SPAN: The FISA bill is making its way through Congress, and joining us on Newsmakers this week is Ken Wainstein. He is the nation’s first Assistant Attorney General for National Security. It’s a position that he’s held since September ’06, and he’s been involved in all of the issues in the Foreign Intelligence Surveillance Act.

Joining us to question Mr. Wainstein this week is Eric Lichtblau. He is a reporter for the “New York Times” and has a book coming out this April about the whole issue of intelligence and FISA, and also Tim Starks, who is Intelligence Reporter for “Congressional Quarterly.” Tim, you could start off.

TIM STARKS, INTELLIGENCE REPORTER, “CONGRESSIONAL QUARTERLY”: Yes, let’s go back in time a little bit to the temporary law that was enacted last August. That’s the one that gave the administration a lot of the powers that it said it felt it needed for surveillance. There’s been a big war of words between Republicans and Democrats and the administration over whether the extension of that – the expiration of that temporary surveillance law would cause any kinds of surveillance problems or diminish our intelligence capabilities as a country.

It’s been about three weeks since that has expired. What, if anything, has changed?

KENNETH WAINSTEIN, ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY: You’re right. There’s been a good bit of debate about this, and the question is, “What is the – what’s the damage that we’re suffering – we, the intelligence community, law enforcement, et cetera – that we’re suffering because we no longer have the authorities under the Protect America Act?”

And the Protect America Act was the temporary legislation that was passed in early August 2007 that essentially addressed the primary need that the government had and has, which is to revise the FISA statute, Foreign Intelligence Surveillance Act. That’s the statute that was passed in 1978 that requires us to go to a foreign intelligence surveillance court to get a court order if you want to direct electronic surveillance, a wiretap, at somebody within the United States.

Because of the changes in technology since 1978, the jurisdiction and the reach of that court order requirement had expanded so that we were having to go to the court to get an order before we wanted to surveil somebody who was overseas – target an overseas terrorist, which was never the purpose of FISA, the Foreign Intelligence Surveillance Act, in the first place.

In 2006, we started discussions with Congress. Congress had hearings. Actually the House passed legislation, it didn’t become final, that would make it clear, that would carve out from the coverage of the Foreign Intelligence Surveillance Act surveillances when we’re targeting somebody overseas, make it clear that if we have a terrorist suspect overseas, we need to surveil that person, we shouldn’t have to wait until we go to the court and get the court approval or go through a process of approval before we do that.

The Protect America Act was passed in August of 2007 – gave us that authority. There were other things we wanted. We wanted to change the FISA statute in a number of different ways to improve it, enhance it, and we also asked for Congress to legislate immunity for those providers who had assisted us since 9/11 in our surveillance efforts. But as a temporary measure, Congress passed the Protect America Act in August, put a sunset of six months on it so it would expire in six months. It got to six months, the President agreed with Congress to have another 15-day extension, got through that extension, and the final statute was – legislation was not and still hasn’t.

And the problem is severalfold. First place, no question that the Protect America Act has provisions in it that allow us to continue the surveillances that we’re doing under the Protect America Act for a year from when we first got the authority to do them. So if we got authority from the court to do a group of surveillances on you pick a day – December 1, 2007, we’d be able to do them until December 1, 2008. So, the day or the minute that the Protect America Act expired, those surveillances continued enforced.

The problem is the ability to go ahead and get new surveillances, and that problem is severalfold. One, in the first instance, the providers, the communications providers who we work with – we have to work with the communications providers because they own the communications systems on which we do the surveillance, they were very concerned about whether they would still be – whether they would still be immunized from any liability – in other words from being sued if they went forward and assisted us after this act had expired.

There was uncertainty there and for about the first six days, there were – there was some reluctance to go up on new surveillances and we were not able to until the general counsels of these different providers had looked at the issue and satisfied themselves that they could go ahead and assist us. But they made it clear that that assistance is temporary, this is the assistance for new surveillances, and that if this state of uncertainty continues, that they might withdraw that assistance.

In addition, there are certain types of new surveillances where we think we might not at all be able to go up because – go up on surveillance because, for instance, they would involve the – getting the assistance of the provider who’s not covered under one of (ph) the orders in the Protect America Act.

And so, essentially out of luck, we’d have to go back to the original FISA statute, use that statue to do those surveillances, and then the old problems of the FISA statutes would reemerge – the FISA statute would reemerge, which is the (INAUDIBLE) to get pre-approval we have to show probably cause and we might end up with an intelligence gap, which is what we had prior to the passage of the Protect America Act last summer.

LICHTBLAU: We’re at a bit of a stalemate obviously now in Congress, and to be honest, we seem no closer to reaching a resolution now than we did three weeks ago or even three months ago. How do you see Congress reaching a political solution at this point? The administration’s standpoint has been sort of an all-or-nothing negotiating tactic. They want – you want immunity – you want full-out immunity for the phone carriers that participated in the wireless (ph) wiretapping program after September 11, and the White House seems unwilling to negotiate anything short of that.

You have Democrats unwilling to consider all-out immunity and are willing to discuss compromises. Neither side seems willing to give. And obviously you had – you had the Democratic leaders in the House who were willing to simply go home three weeks ago rather than extend the bill for 21 days. Neither side seems willing to give. How is this going to get resolved?

WAINSTEIN: You know, Eric, I’m not the best at sort of reading the political tea leaves in terms of sort of how this is going to play out politically, but the state of play, as I see it, is this. We had a very long and I think a very healthy and strong process in the Senate through the Senate Intelligence Committee, the Senate Judiciary Committee, and then on the Floor, very vigorous debate.

I think there were 44-odd different amendments proposed. Members of the Senate on both sides of the aisle got really in depth into these issues and got to learn the issues, learn about these provisions and what the implications were for our authorities and our capabilities, but also for civil liberties.

And I’ll tell you, you know, people – when people question the, you know, how the legislative process works, I will say this has been a good example of very strong legislation. And so I have a lot of confidence in the Senate bill. Senate bill came through, it was actually, you know, essentially a version of what came out of the Senate Intelligence Committee, voted out 13-to-2, it had immunity in it – had an immunity provision, that went through the process, and they came out at the end of the Senate – you know, the Senate vote on the Floor I think was 68-to-29 – good bipartisan majority in support of a Senate bill that has immunity.

So, when I look at this situation, I see a very well reasoned bill that has – I’ll tell you, has some things that I’m not crazy about as sort of an operator in the intelligence community, someone who’s – wants good, strong authorities, there are certain things I’m not crazy about, but as a function of the legislative process and the necessary compromise, these things were in the bill. So, it’s not perfect, but it’s balanced. It’s sound.

And so, I’m glad the House is taking a good, hard look at this bill. It is my belief that as they look at all the options and they see all the arguments, all of which were made in the Senate and argued to the nth degree, at the end of the – end of the day they’ll see that this is a sound piece of legislation that should be passed and signed by the president.

LICHTBLAU: Immunity is obviously the big sticking point at this point – the question of whether or not the telecom providers that are now facing 40-some lawsuits over their roles in the – in the 9/11 surveillance programs should be – should be legally protected for – from their participation in those programs. You have widespread agreement in Congress for restructuring the foreign intelligence law, the types of restructuring you talked about earlier.

Why not set aside the immunity question, as some people in Congress are now suggesting, pass a bill that gives you the types of foreign intelligence advances that you think are necessary, that protects national security in your view, and save that question for another day and get an agreement on what you can get agreement on? Whereas the White House seems to be taking the position it has to be immunity and we have to have that now and we are not willing to negotiate. Why is that question driving this debate?

WAINSTEIN: Well, I think the debate is on a number of fronts, but in terms of the immunity issue, you know, I go back to the – sort of the core arguments for immunity. One is the basic fairness argument, and I don’t – I think we shouldn’t lose sight of that, which is these are companies that stepped forward to assist us in the aftermath of 9/11 to help prevent another 9/11 from happening. They received assurances from the government, the highest levels, that this was a lawful program and that it was authorized by the president and was necessary for our national security.

And they went for it on good – in good faith assisting the government. Those documents and all the documents related to these programs have been reviewed by the Senate Intelligence Committee – the Senate and House Intelligence Committees and Judiciary Committees. They’ve seen those documents. And if you look at the Senate Intelligence Report, they put out a very thoughtful report when they passed their bill out 13-to-2. They make the point that this – they’ve looked at these documents, that the companies acted in good faith, and that they should not be held liable, they should not face potential liability in the – you know, range of billions of dollars, and that to subject them to liability would chill (ph) their cooperation.

And this goes to the second point, beyond the basic fairness argument, which is a point that I think is near and dear to our heart because we have to work with these providers, we need their assistance to try to keep track of these terrorists. If the providers feel like they’ve got this liability looming in the background, and as you said, it’s 40 lawsuits and how many billions of dollars in potential liability, and, for instance, they’ve got a – you know, some uncertainty in the law like they do now, they’re going to do what general counsels often do when there’s some uncertainty and there’s more reason to be risk averse, instead of just cooperating and assisting us when we say, “Here’s a court order. Here’s a directive.”

They’re going to say, “Woo (ph), we’re already facing liability. We’d better really take a look at this. We better litigate that out before the FISA court before we cooperate – we lend your – our assistance to you.” And while we litigate that, that surveillance that the government wants isn’t happening. That terrorist that we want to keep track of is not being kept track of. And so, for our purposes, that’s a very damaging state of affairs. And we saw that play out already, as I just described, in the aftermath of the expiration of the Protect America Act. And with – if we don’t remedy this – the problem of this liability and these 40-odd lawsuits, that’s a phenomenon we’re going to continue to see.

And in addition, I mean you look at what continued liability means, or the continuation of these lawsuits means, it means the prospect of, you know, jeopardizing or compromising classified information. So, there are a variety of reasons why immunity is a very strong – is a measure that we need. But I think the strongest argument for it now is that we need to enlist the assistance of the providers, we need it now, we don’t – we can’t have equivocation, and we want it on a permanent footing so that they understand where they stand, how they’re protected, and they can go forward.

DOEBELE: How specifically are you communicating with the members of the House right now in trying to move this forward? Are – is your office having one-on-one meetings with the leadership? Are you doing one-on-one with each member?

WAINSTEIN: Well, it depends on which you you’re talking about. Obviously there are a variety of people under the administrative – in the executive branch who are working with Capitol Hill on this. I personally and members of the National Security Division – that’s the Division that I’m a member of in the Department of Justice, we’ve gone up to numerous briefings, provided technical assistance throughout this process, you know, in terms of how they’ve gone about crafting the various provisions, we’ve provided assistance.

And we’ve also met with individual members, we’ve – I’ve appeared in – I don’t know, eight – ten different hearings, and in fact, I’m going to a hearing this afternoon, and basically just making ourselves available to provide assistance.

But I can – I can tell you that it’s a – it is an ongoing process. We want – for instance, I heard the point made by a member of the House staff a couple days ago that they had just received documents related to the terrorist surveillance program and they wanted – needed time to work through those. Our people went up there to sort of walk them through those documents so that they could see what the critical points were. That’s the kind of thing we’re doing.

DOEBELE: Tim?

STARKS: I have a question about the difference between the approach in the Senate and the approach in the House. As you said, the Senate bill is the one that the administration prefers, they worked very closely with the Senate Intelligence Committee to come up with something that was agreeable. But it doesn’t seem like that quite happened on the House side. There were disputes over getting those documents. They didn’t get them as early as they wanted. And it’s strange that the administration almost seems to have taken the view that there’s something unacceptable about House and Senate trying to come to some kind of compromise legislation, which is pretty normal way they do things.

Is there some reason that it took longer to get those documents to the House as opposed to the Senate? Why wasn’t that process as close and is there something wrong with the House and Senate trying to come up with a compromise?

WAINSTEIN: You know, I can’t speak directly to the sort of how and when the documents were made available to different parts of Congress. I don’t know how that decision-making proceeded. I didn’t make those decisions. But I can tell you that in terms of the – in terms of the cooperation between us and the two Houses, yes, we were much more fully engaged in the process with the Senate Intelligence Committee. I was up there at a number of hearings, we went up to countless briefings and sit-downs, where we actually really noodled through the issues.

And we did some of that in the House, but not as much. And I think I would have welcomed that. I think it would have been good to have more of that with the House. And maybe we would have ended up at a place where the bills in each house were a little closer together.

But to answer your last question, obviously, for legislation we need to have it pass both houses. And we’re hopeful that the more that the House really looks at this issue – and they are right now, I think they’ve spent a good bit of time poring over the issues over the last few weeks – they’ll see the wisdom of the legislative language that’s in the Senate bill.

LICHTBLAU: Can I ask you, just going back to the roots of this whole debate, which was the program that President Bush authorized right after 9/11, allowing the NSA to wiretap without warrants on American soil.

It’s caused, obviously, enormous political and legal fallout. And you are personally dealing with a lot of that today. We’re still debating in Congress what the proper response to that should be – legislatively and legally.

Was it worth it? Was that the right response? Or was there another way? Was there a better way of dealing with 9/11 tactically in terms of gathering signals intelligence?

WAINSTEIN: Well, a couple of things. Keep in mind, in terms of the authorities here – in other words, the authorities we have to do surveillance overseas – the problem with the FISA statute that I described at the outset of the program tonight, that goes back to 1978. That doesn’t go back to the Terrorist Surveillance Program; that was a problem that predated the Terrorist Surveillance Program. And it evolved as technology evolved, and then, thereby, broadened the scope of the application of the FISA statute.

So, that’s a problem that goes back well before the Terrorist Surveillance Program.

LICHTBLAU: But you’ve had numerous technical fixes to FISA since 1978. I mean, it’s been updated nearly 100 times since 1978.

WAINSTEIN: Right.

LICHTBLAU: It’s been updated nearly a dozen times, just since 9/11.

WAINSTEIN: Yes. And I’ve actually been involved in testifying at a number of hearings in regard to the PATRIOT Act reauthorization. And that includes some fixes to the FISA statute.

LICHTBLAU: So, it sounds like this was a stagnant law just sitting there since 1878, and I just don’t want people to misunderstand that.

WAINSTEIN: No, that’s true. But I think this problem became particularly acute after 9/11, because after 9/11, it became very clear – to the extent it wasn’t already – that signals intelligence was going to be an absolutely critical part of our effort to prevent another 9/11.

And you can take a look at the annual numbers that we put out of the number of FISAs – Foreign Intelligence Surveillance Act orders – that are issued each year. And you can see that they’ve more than doubled since 9/11 – you know, quite – you know, much more than doubled since 9/11.

So, the problem became a bigger problem, because the more we needed to rely on signals intelligence, the more damaging that intelligence gap was to our efforts, so the more surveillances we were missing. So it became much more acute as we got beyond 9/11.

In terms of sort of what should – what was or should have been done right after 9/11, I mean, it’s the way I look at history all the time. When I came on this job in September of 2006, the decision had been made that, what was the Terrorist Surveillance Program, we’d seek to put that under the court authority. And we were involved in the effort to do that. That was the right decision at that time, under those historical circumstances.

There were different historical circumstances five years earlier.

LICHTBLAU: What had changed? Why couldn’t that decision that was made in January of 2007 – to go to the court for a court order every time – why couldn’t that decision have been made in 2002 or 2003?

WAINSTEIN: To go to the court for approval every time we want to do a surveillance?

LICHTBLAU: Right. The decision was made in January of 2007.

WAINSTEIN: Well, the decision was made in January of 2007 to go to the court and get court authority under, you know, the legal theory that the court accepted.

We went forward with that approach in January. We were able to do it. The court was able to approve that process. But that was given the circumstances at that time. And I think it’s very hard to then go back and second-guess the decisions made under very different circumstances and a different state of law, of the FISA, and with a different threat.

STARKS: There were two things you were quoted as saying in the “Washington Post” this week, that I wanted to see if you could elaborate on.

The first was – and I’m paraphrasing – is that the surveillance of e-mails has been one of the main – has been the main issue in this debate about what kind of authorities you need to do the surveillance you would like to conduct.

That was a new revelation to a lot of people that I had talked to, who said that they weren’t aware that that was the main issue, that there were other issues. It related to how difficult it might be to locate someone and, therefore, conduct surveillance on them based on whether they were overseas or here.

The other thing that you said, that you were quoted as saying, was that the so-called foreign-to-foreign problem of calls that are between foreigners, but that are routed through our telecommunications infrastructure, was not really a problem. And that seemed to contradict some things that the Director of National Intelligence has said in the past, that there was a court ruling that made this difficult.

Can you elaborate on what you meant by those things?

WAINSTEIN: Right. I think, actually, this is consistent with what has been said in testimony before the Director of National Intelligence and others. And it is this.

We have asked for authority with the Protect America Act and with the Senate bill, and what I believe ultimately will come through Congress, to go, to target somebody who is overseas, outside the United States, and do so – target that person for surveillance – and do so without having to go to the FISA court first.

That was the original premise and understanding of Congress when it passed the FISA statute back in 1978. And that is what makes sense. I mean, the constitutional protections that apply here in the United States, there’s no reason they should be extended to terrorist suspects overseas. That’s what we asked for.

The concern has been that, when we’ve done that in the past – because of technology, because of the evolution in technology – we’ve had to go to the FISA court.

And the question that was put to me the other day – and is a question that I’ve heard the Director of National Intelligence answer is – well, what happens if it’s foreign-to-foreign? Does the law require you to go to the FISA court, if you know it’s a foreigner talking to another foreigner, both in foreign countries?

And the reality is, the law does not require that we go to the FISA court for that. If you look in your codebook, you’ll see that it doesn’t require it.

The problem is that you don’t know – and especially in the e-mail context – you don’t know where the recipient of the e-mail is. So, you don’t know if that person is in the United States or overseas when you intercept that e-mail.

And as a result, you can’t be assured that you don’t need to go to the FISA court, because it could be that the person who accesses that e-mail, and gets the e-mail that was sent by a person overseas, ends up coming to the United States at the time that he receives it. It would then fall within FISA. If that person was outside the United States, it would fall outside of FISA. But we don’t know.

And as a result, we had to go to the FISA court to get approval before doing those surveillances.

STARKS: Isn’t that a similar problem, though, with cell phones or where a call is going to, where you don’t – someone picks up the phone to call someone, and you don’t know who they’re calling until they’ve already called them?

WAINSTEIN: Whenever it – we want to be able to target a person overseas, and do so without having to go to the FISA court. If that person then calls or e-mails or communicates somehow to somebody within the United States, to a U.S. person in the United States, any information that we get that relates to that person in the United States will minimize. It will be subject to minimization procedures, that will thereby protect the privacy interests of the person in the United States.

But there’s no reason – the fact that that person’s communicating with somebody in the United States – there’s no reason why we should have to go to the FISA court to first target the person outside the U.S.

STARKS: And on the foreign-to-foreign issue, the remarks that I’ve seen from the Director of National Intelligence was that there was a secret court ruling which had subsequently become into the public discourse. It’s no longer – the actual ruling is no longer secret, although some of the details, I think, are still unknown to the general public.

That said, if what he – what McConnell had said was that, if those calls are routed through our infrastructure here in the U.S., that that ruling said you need a warrant for that now, or that at least, potentially we need a warrant for it, where you hadn’t before.

Is that not your read of what that ruling was about?

WAINSTEIN: Well, I can’t get into specific rulings. I mean, the FISA court – their orders, pleadings, all the proceedings from the FISA court are classified. I can’t get into specific rulings.

STARKS: Well, some of it has been declass – I mean, by discussing it in public, McConnell has said before that he has sort of de facto declassified some of that information.

WAINSTEIN: Well, I think I’ll stick with my answer before, which is my understanding of the state of play.

LICHTBLAU: Let me take a step back and try and look at why this issue has generated so much heat publicly.

If you look at the op-ed pages, even at the late night comedians, there seems to be a skepticism about whether or not these NSA programs – when we talk about signals intelligence and wiretapping – whether or not these programs are really being used for the purposes that the administration claims, whether or not these are always legitimate terrorist suspects, or whether or not these are fishing expeditions – or worse yet, even political purposes – that people are being eavesdropped on.

You’re facing a lot of skepticism, at least from some sectors of the public.

Does that surprise you? Does that concern you?

And how do you respond to the people who say, the reasons that the laws were set up in 1978 in the first place, were because we need a check and balance on the executive branch, we shouldn’t be giving the executive branch too much power to eavesdrop on anyone they want, for that very reason?

WAINSTEIN: So, the fact that people are raising these concerns doesn’t surprise me at all. I think that’s actually part of the debate, which I think has been very healthy since we started in this process of seeking FISA modernization.

And another reason why it doesn’t surprise me is because, as you said, that was the very reason why – or one of the very reasons – why FISA was passed in the first place. It was a response to perceived abuses back in the ‘60s and ‘70s, where foreign intelligence surveillance authorities were used for – allegedly used – for political purposes.

So, I think that’s a good thing to be raising that concern. It’s a good thing to be looking at the various legislative proposals, to make sure they have the safeguards in them that will prevent anybody – not just us, but anybody in the future – from using surveillance authorities for political purposes, or in a way that violates civil liberties. And that’s what this debate has been about.

But if you look at the Senate bill, there are a lot of safeguards in there. And in fact, especially if you look at the Senate bill and compare it to the Protect America Act – the statute that was passed back in August of 2007 – it has a host of protections that weren’t there initially.

For instance, the Senate bill has, for the very first time in history, requires us to go to the FISA court before surveilling an American, a U.S. person overseas. Up to now – in fact, now, we can do that without having to go to the FISA court first. We have to go to the attorney general and establish probably cause. But the executive branch can do it without the FISA court. Under this new legislation, or the Senate bill, we’d have to go to the FISA court.

The FISA court reviews our targeting procedures – in other words, the procedures we use to determine that a person is outside the United States, and therefore, can be subject to surveillance under this authority. They also review the minimization procedures.

And keep in mind that under this statute, as – or under this bill – as with the Protect America Act, we can’t just willy-nilly surveille somebody for our own purposes. There has to be a legitimate foreign intelligence purpose to that…

LICHTBLAU: Let me circle back to where we started this discussion, when we talk about the public skepticism about who is being eavesdropped on.

One reason that that seems to be out there is that we know so little about who are actually the targets of the NSA operations. And the lawsuits that are now pending, if those are shut down, we’ll know next to nothing.

Isn’t there some public benefit – the administration wants to have these lawsuits essentially thrown out of court.

Isn’t there some public benefit to litigating these lawsuits and being able to know for certain whether or not there are abuses to these programs, and being able to put to rest a large contingent of the public who thinks that there were abuses through this program?

WAINSTEIN: This is not the mechanism to do it. As I said, these are companies that should not be hauled into court, subjected to a potential liability.

If there is – they were doing this at the behest and upon assurances from the government. If people have a problem with what happened, they should – it should be the government that they target their litigation against.

But also keep in mind another thing, that this – the Senate bill now – well, let me step back a minute.

The Senate and the House have had extraordinary access to the details of these programs. The Senate Intelligence and Judiciary Committees have received these documents, gotten full briefings about what the programs, the program, the Terrorist Surveillance Program was, what it entailed and what it didn’t entail.

So, you have not just the intelligence committees, but the intel and judiciary committees, fully versed on this. They understand it.

So, looking backwards, you have our overseers taking a good, hard look at what happened. They know. They know what happened.

LICHTBLAU: So, are you confident that the NSA did not target any Americans without probable cause? Without the use of a warrant?

WAINSTEIN: Well, you’ve seen what the criteria were for the Terrorist Surveillance Program. It’s been described, you know, one end of the communication outside of the United States, and probable cause to believe that it was someone who is affiliated with al Qaeda.

So, they – and this has all been laid out publicly. And so, you can see that. And the details have been played out for Congress. And Congress going forward is going to have an insight into what we’re doing.

We have to report to Congress on a regular basis. They can ask us whenever they want as to how we’re effectuating this new authority.

So, this is something that we’re going to be open to – the FISA court is going to oversee it, and Congress is going to oversee it. And that’s the way you do, you conduct oversight in an area of highly classified, highly sensitive intelligence operations.

LICHTBLAU: But was that authority ever (ph) misused under the Terrorist Surveillance Program?

WAINSTEIN: Was the Terrorist Surveillance Program ever misused? I don’t know.

I mean, I don’t know all the details of it. I understand what the procedures were that were in place. And I know that there are numerous investigations looking at it, you know, I.G.s and others.

And I’ll leave that to others to investigate actually how it was implemented.

LICHTBLAU: So, it may have been. I mean, you can’t say with confidence that the protocols put in place were always followed?

WAINSTEIN: Well, you can’t say that about any authority. I mean, we’re human beings.

LICHTBLAU: But, I mean, the government has presumably – we don’t know, since this is all so tightly held under classified restrictions. But the government has at least vowed that it has looked back on these operations. And someone knows whether or not these operations were abused or not.

WAINSTEIN: Yes. And those look-backs are happening right now. That’s why, A, I don’t know, and, B, I wouldn’t even presume to answer it.

But let me just remind you that in every area of human endeavor in law enforcement and intelligence – and I’ve been doing this for 19-some years – there is the potential for human error. And there is the potential that someone might step over the line with a procedure or rule.

I have no information that that’s happened, but that’s why I want you to understand, I’m not going to give a categorical answer about that one way or the other, because I think that would be irresponsible, as to any intelligence operation.

DOEBELE: Gentlemen, with that, we are out of time.

Ken Wainstein is assistant attorney general for national security, joining us on “Newsmakers” this week. Thank you.

WAINSTEIN: Thank you for having me.

(BREAK)

DOEBELE: We’re back to discuss this for a few minutes.

Tim and Eric, what’s going on here at the end? What were you trying to nail him down on?

LICHTBLAU: Well, there are so many unanswered questions about what the administration calls the Terrorist Surveillance Program, which was the NSA’s program to eavesdrop without warrants.

And I find it interesting that Wainstein could not offer an assurance that there had not been abuses under the program. He listed some of the protocols that were in place, but would not say that those protocols were followed, which I found pretty interesting.

DOEBELE: What was your reaction, Tim?

STARKS: I was surprised that he didn’t say categorically. I thought perhaps he didn’t answer that, because he’s not been in this position for the entire length of the time of the Terrorism Surveillance Program. But is was interesting.

DOEBELE: What is the biggest problem facing him as he goes and works this through the House side?

STARKS: It’s largely the Democrats’ own different factions about what the right thing to do is here, and the fact that, despite all the pressure that the administration has been putting on them to go along with the Senate bill, they have pressures coming from some of the more liberal constituents back home, who don’t like the idea of granting immunity to these telecommunications companies, and have some problems with the other ideas, as well.

DOEBELE: Therefore, leading into your questioning regarding the public relations of all of this.

LICHTBLAU: Right, right. I think the Democrats, you know, as Tim said, are finally pushing back on something. For so long, for the last two or three years, really, there’s been a fear, really, among the Democrats of being – of the White House playing the national security card and being painted as weak on national security.

This is really one of the first issues where they’ve been willing to fight back and say, “You know what? Try and play that card. We’ll see what happens.”

DOEBELE: At the end, what do you think is going to happen?

STARKS: It’s difficult. You know, because they are so – those pressures are coming from different sides. And because both sides have hold (ph) firm for so long, you know, it used to be that – I think the conventional wisdom in Washington was that the Democrats would eventually concede to the White House and give them much, if not everything, that they wanted.

Because that story line hasn’t played out exactly the way it has in the past, it’s kind of up in the air.

LICHTBLAU: Yes, I still think the White House will get most of what it wants. I think it will get some form of immunity for the telecoms. Perhaps not the all-out blanket immunity that they want, but close to it.

DOEBELE: Before we wrap up, I want to ask you about your book, because it’s really important to this issue.

What is it? And what’s its name? And what’s it going to be about?

LICHTBLAU: Oh, it’s called “Bush’s Law: The Remaking of American Justice.” It’s out April 1st, and it looks at the NSA program, which we broke in the “New York Times,” my partner and I at the paper, two years ago now. And it looks at that debate and the whole broader discussion about the tactics and policies of counterterrorism since 9/11.

DOEBELE: Eric Lichtblau is a reporter with the “New York Times.” Tim Starks, intelligence reporter for “Congressional Quarterly.”

Thank you both for your time.

STARKS: Thank you.

LICHTBLAU: Thank you.

END