MSNBC Hardball with Chris Matthews - Transcript
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MATTHEWS: Thank you, David Shuster. Republican Congressman Peter King, chairman of the House Homeland Security Committee is asking that the Bush administration investigate the matter and even charged the "New York Times" with treason. He joins us this evening along with Democratic Congressman Edward Markey, who defends reporting of the "New York Times."
Before we begin, HARDBALL put in requests today for editors and reporters at the "New York Times" to come on this show tonight, but the paper declined our request. We also called the "Wall Street Journal" and the "L.A. Times," the two other papers that wrote about the banking story, and neither paper accepted our invitation.
So let's go to Congressman Peter King. What should be done to the "New York Times"?
REP. PETER KING ®, NEW YORK: They should be investigated and prosecuted for violating the Espionage Act. This was a program that was working, it was an effective weapon in the war against terrorism, it was entirely illegal and there was absolutely no public purpose at all in revealing it. They might have as well have taken confidential information and handed it to Osama bin Laden.
MATTHEWS: Edward Markey, your response?
REP. ED MARKEY (D), MASSACHUSETTS: The "New York Times" has provided an enormous public service. It has revealed that the Department of Treasury, the Bush administration, when confronted with internal criticism, inside its own administration that this program may be illegal, rather than in fact getting a court order, or going to Congress, instead they hired an auditing firm, Booz Allen, in order to determine whether or not constitutional rights were violated.
That in and of itself is a violation of the Constitution, and I think that as the story unfolds and people understand it more, that the "New York Times," rather than going to jail, will be put up once again for another Pulitzer Prize.
MATTHEWS: So you're saying, Mr. Markey, it's illegal for the government to have done what it's done in terms of tracking banking information?
MARKEY: It has a responsibility to obtain a federal court order under the Fourth Amendment of the United States Constitution. It also, under the Financial Privacy Act of 1978, has a responsibility to protect this information.
Their argument is that SWIFT is not covered by the law, but the law clearly says that if an agent of a bank is in possession of the information, it too is covered by the 1978 Financial Privacy Law, so as a result, there are two violations, which in my opinion, are quite clear, that the administration has been engaging in.
MATTHEWS: So you're saying it requires probable cause for the federal government to investigate these banking records?
MARKEY: That is correct. Under the law, or under the Fourth Amendment, in order to engage in a search of a person's papers or person, there must be a probable cause which is established before a federal court. Here they have not done it.
Instead, they have gone to Booz Allen, an auditing firm, in order to make that determination. We're going to celebrate on the Fourth Amendment our Constitution. Booz Allen is not in the Constitution, but our federal courts and the United States Congress are, and the Bush administration has ignored both in putting this program on the books.
MATTHEWS: Congressman King, answer that question. Is this an illegal program or not? The surveillance of our banking records around the world?
KING: No it's not. In 1976, the Supreme Court ruled in the Miller case that bank records are not protected by the Fourth Amendment because they're held by a third party. Subsequent legislation that went into effect did authorize the use of administrative subpoenas, which was what was done here. This is entirely legal.
The use of Booz Allen was to put an extra layer of protection which was not required by the law, so here you're actually penalizing the government for doing something it wasn't even required to do. Even the "New York Times" in this story last Friday has never suggested this was illegal anyway. This was entirely legal.
MATTHEWS: So you go by the "New York Times" on this?
KING: Listen, if anyone was going to be critical of the "New York Times"-I don't believe the "New York Times" very often, but in this case, they are the ones who are the critics of the Bush administration, and even they are acknowledging it is legal.
MATTHEWS: How many years in prison do you get for espionage or treason? And what is the charge you believe that should be leveled or investigated against the "New York Times"?
KING: A violation of the Espionage Act and also the violation of the Comment Act of 1950, because these were government secrets, government confidential, classified information, revealed in a time of war.
MATTHEWS: Do you want to see Bill Keller in jail?
KING: If he's found guilty, that's up to the judge. But, certainly
MATTHEWS: You say they're guilty.
KING: Yes. You're asking me, yes, he should go to jail.
MATTHEWS: And how long should he serve?
KING: That's up to the judge. You have to see what the mitigating facts are.
MATTHEWS: But spying against the United State government, it seems to me ...
KING: No, that's fine. Disclosing government secrets, that's not spying. Disclosing government secrets.
MATTHEWS: But you're saying he's guilty of espionage. Just to get into the lingo here, you're saying he's guilty of espionage.
KING: He's guilty of violating the Espionage Act, yes.
MATTHEWS: So he's guilty of espionage.
KING: Yes, spying ...
MATTHEWS: The "New York Times"?
KING: Yes-spying is-yes, who's the "New York Times?" You make it sound like because they're the "New York Times," they can't violate the law. The "New York Times" violated the law. They should be penalized. I don't put them up on this statue like you do. I've lived with the "New York Times" my whole life. There's nothing sacred about the "New York Times" to me. They should be held to the same law as everybody else is.
MATTHEWS: So if somebody is a communist, like Alger, who sneaks a secret out of the country and sends it to Moscow, secretly, he's guilty of espionage. The "New York Times" puts something on the front page, is that spying, is that espionage?
KING: I would call it espionage and it's a violation of the law. Whether it's Alger Hiss or whether it's the "New York Times" is a difference of degree. Alger Hiss did it surreptitiously, the "New York Times" did it openly. But they violated the Espionage Act. By the way, Alger Hiss was not convicted of espionage, he was convicted of perjury.
MATTHEWS: Well because there was a statute of limitations on it. He was guilty as hell. Let me go to Congressman Markey. What if Congressman King is right? I mean, you make the case about the law and the Fourth Amendment protecting us from unreasonable search without probable cause. Those are legal arguments, fair enough.
But what about the argument that Congressman King is making here, the larger argument, which is if you take away the American government's ability to fight terrorism by taking away one of the weapons we have, which is surveilling these bank records, you're endangering our citizens because you're letting the terrorists do what they do, which is terrorize America?
MARKEY: There is it no American who wants to deny the Bush administration the right to tap the phones of al Qaeda, to read the e-mails of al Qaeda, to go through the financial records of al Qaeda. That's not what we're debating right now.
The question is whether or not in each one those instances the Bush administration has a responsibility to go to a federal court, to go to the Congress. Instead, what they have done is outsourced the constitutional protections to Booz Allen. Even this company Swift in Belgium had such serious legal concerns that they wanted extra lawyers on this issue, and they wanted the accounting firm.
So the issue is really not over whether or not we he want to protect against al Qaeda. There's no question about that. Mohammad Atta hijacked two planes from Logan Airport with my constituents on it. We want to track down these killers.
But at the same time, we don't want to shred the United States Constitution. The Bush administration is arrogant in its avoidance of their constitutional responsibility to tell Congress about this program and to go to a federal court in order to get a legally obtained warrant.
MATTHEWS: You heard the debate. It's undergoing. We're going to come right back, Congressman King. You've heard the debate tonight. One congressman says it's a violation of the Constitution to check on these banking records. The other congressman said the "New York Times" is guilty of espionage. We'll have your reaction. We'll be taking on the Bush administration in the flight with the media from NBC's Tom Brokaw. He'll be joining us here. And later New York City Police Commissioner Ray Kelly. You're watching HARDBALL from New York, only on MSNBC.
MATTHEWS: Welcome back to HARDBALL. We're back with U.S. Congressman Peter King of New York and Congressman Ed Markey of Massachusetts. Late today, I asked NBC's Tom Brokaw about the "New York Times" decision to report on the Bush administration's secret program to track banking records of suspected terrorists.
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TOM BROKAW, NBC NEWS: My own judgment is that they did have the right to do it, and that they exercised what they thought was a responsible position after a very thorough review. Obviously the administration is coming after them, and I think because it's heartfelt, they feel passionately that they have been betrayed, that the country has been betrayed in some fashion. And in a Democratic republic, this is our we work things out, you have this debate in society.
There have been some critics who have gone way too far on both sides, I think. But I don't know enough about all the elements that were on Bill Keller's desk when he made that decision. But based on what I've read, I can see where they would have done that.
MATTHEWS: Are there any stories, conceptually, that you can imagine...
BROKAW: ... Let me just say one other thing about that. I don't know of anyone who believes that the terrorist network said, "Oh my god, they're tracing our financial transactions? What a surprise." Of course they knew that they were doing that.
(END VIDEO CLIP)
MATTHEWS: Let me ask you, Peter King, congressman, on both those points. Do you accept the argument, Ron Suskind's got it in his book, the new book, "The One Percent Doctrine," obviously published several weeks ago, that says the al Qaeda people, the bad guys have been on to the fact that we're checking the banking records?
KING: First of all, I think it's a very unreliable, uninformed book, to start off with that. But secondly, you wouldn't have Governor Kaine and Lee Hamilton and Jack Murtha all calling Bill Keller telling them not to go ahead with this if they thought it was unimportant. I don't know who knows more about terrorism than Tom Kaine and Lee Hamilton. And they called the editor of the "New York Times" and asked him not to do it because it would damage our national interests.
MATTHEWS: Well on another count, let's take a look at Senator Arlen Specter, chairman of the Senate Judiciary Committee, a Republican, who's using this information he's gleaned from the "New York Times" in this story, to call for hearings about what the United States is doing with regard to checking banking records.
KING: I disagree with Arlen Specter. I will stand with Tom Kaine and Lee Hamilton in saying that it was wrong to do this and it damaged America's national interests. I'm certainly not going to be influenced by Ron Suskind.
MATTHEWS: Let me ask you Congressman Markey, are there times that the press simply has to say, we'd like to run this story but it endangers America?
MARKEY: Oh, without question. There is plenty of situations where that would be the case. This is not one of those cases. As you know, Chris...
MATTHEWS: ... How'd the-Congressman, how do you know sitting up there on Capitol Hill, that there aren't agents out there who are in danger, that there aren't terrorists out there right now who are ready to strike, that we could pick up with this kind of surveillance, but we won't be able to stop?
MARKEY: This is not a situation where there's a phone which is being wiretapped and there may be an urgent threat to our country within the next 24 hours.
This is a situation where the government, our government, gains access to this information weeks or months after the data has already been compiled. So there's no urgency here. There's no need to wall out the federal judiciary. There's no threat to our country if the judiciary was able to be a part of the decision as to what the scope of the investigation would be. No threat at all.
It's only that this administration doesn't want the federal judiciary to be part of a wiretapping and e-mail, or a banking record investigation, and it has been consistent on that position, but I think that it's a constitutional question.
KING: It's not a constitutional question. The Supreme Court has said it's not a constitutional question. In 1976, in the Miller case, they said there is no Fourth Amendment protection when it comes to banking records.
MARKEY: Well again, the...
KING: ... I don't know how much free you can get.
MARKEY: The 1978 Financial Privacy Protection Act of the United States of America has on the books a requirement that the financial information of Americans not be compromised unless there is a legally-obtained warrant from a federal judge and here they did not obtain it.
KING: It allows the administrative subpoena. It allows an administrative subpoena in those cases, which is what was done.
MARKEY: The administrative subpoena under that law requires that the person whose information has been subpoenaed be given a notification in the mail that it has been obtained, and here they have not provided any information to the thousands or millions of Americans whose information has been compromised. That's the law.
KING: First of all, it's very few Americans ...
MATTHEWS: Let me ask you both, do you agree that this program ...
KING: It's very few Americans. It's almost all overseas people, very few Americans were involved in this.
MARKEY: No, but they're doing it here in America.
MATTHEWS: OK, do both of you Congressman accept the fact that the administration has been successful in nabbing terrorists using this kind of bank surveillance? Congressman King first.
KING: Absolutely. Major case, Hambali, who was the architect of the Bali massacre, he was captured through this. That's clear. It's cut and dry. And because of that, thousands of-at least hundreds of lives have been saved if not thousands.
MATTHEWS: Congressman Markey, how do you respond to the success of the program? People want terrorists nabbed.
MARKEY: We want the terrorists nabbed. This program is a success, but we don't know whose constitutional rights have been violated in that. In the pursuit of terrorists, we have to make sure that innocent Americans' constitutional rights are not violated, and the White House does not want that judicial oversight to be a part of this process, and that's where this whole issue goes to the core of what we fought for in 1776, and ...
KING: No, it goes to protecting Americans, protecting Americans and doing it under the law which is what the Bush administration is doing.
MARKEY: There's no debate over protecting Americans.
KING: And we're doing it under the law. We're doing it under the law.
MARKEY: They are not.
KING: They certainly are.
MARKEY: The president cannot do it alone. He must do it in concert with the United States Congress and the judiciary. He cannot usurp this power to himself exclusively. It is a violation of the Constitution.
KING: That is Ed Markey, not the Supreme Court speaking. Thank you, Chris.
MATTHEWS: OK, thank you. Congressman, thank you for coming on
MARKEY: Thank you.
MATTHEWS: We have to run out of time here. I wish we could keep you on for the hour.
KING: Yes, so do I.
MATTHEWS: Congressman Ed Markey of Massachusetts, Congressman Peter King of New York.
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