MR. SMITH: Democratic Senator Joe Biden of Delaware is a member of the Senate Judiciary Committee. He joins us this morning.
Good morning, Senator.
SEN. BIDEN: Good morning, Harry. How are you?
MR. SMITH: Very well. Fourth Amendment is supposed to protect every American from unreasonable search and seizure. Do you think this big grid passes that test?
SEN. BIDEN: I don't think it passes the test, but it clearly doesn't pass the test of two existing statutes that say you can't do these kinds of things, forgetting the Fourth Amendment.
And Harry, the bottom line here is here you have the president of the United States making a judgment that's not reviewable by the courts and not reviewable by the Congress, and we're supposed to say, "Okay," and to tell us -- it's a little bit like what would happen if the banks turned over all your checking records without your name but gave the checking account number and every single purchase you made and pattern of your behavior and then you were told, "Don't worry, that's not invasion of your privacy."
MR. SMITH: Well, the president, though, said yesterday, we're not listening to the phone calls; we're just looking for patterns.
SEN. BIDEN: Harry, I don't have to listen to your phone calls to know what you're doing. If I know every single phone call you made, I'm able to determine every single person you talked to; I can get a pattern about your life that is very, very intrusive.
And the real question here is, what do they do with this information that they collect that does not have anything to do with al Qaeda? There's a whole deal when you talk about this kind of stuff where, under the law, they're supposed to demonstrate that they're getting rid of and not keeping any extraneous information that they pick up on wiretaps and/or pick up in sweeps like this. And the president's saying -- I think I wrote it down -- he said, this is not mining or trolling.
If it's true that 200 million American phone calls were monitored in terms of not listening to what they said but to whom they spoke and who spoke to them, I don't know; the Congress should investigate this.
MR. SMITH: Here's the other thing, though. You go all the way back to December and the warrantless wiretaps. The president said, "I have the authority. We went through this. The Congress gave me authority for this and we have this war on terror." You've got guys like Senator Jon Kyl say, complaining about this is nuts. We're at war here. How are we going to find these guys?
SEN. BIDEN: We have -- no one's arguing whether or not you have the right to go out and tap and do everything you need to do to track down al Qaeda. That's not the question here.
Years ago, Harry, I was one of those guys that co-sponsored the bill called FISA, the Foreign Intelligence Surveillance Act. Everyone I've spoken to who's been briefed on this matter says that everything that they want to do to deal with al Qaeda is able to be done under FISA, and maybe with a small amendment to FISA.
But this idea that no court will review, no Congress will know, and we've got to trust the president and the vice president of the United States that they're doing the right thing, don't count me in on that.
MR. SMITH: All right. Is this going to hurt chances for General Michael Hayden to be named the new head of the CIA?
SEN. BIDEN: I think it will. And Hayden's a first-rate guy. Guys like Admiral Bobby Inman, who I respect more than anybody I've ever worked with over the years, tell me he's fiercely independent, tell me he's actually -- and others have told me he's actually been willing to buck Cheney and others. But I think he's caught right in the middle of this. I think it's going to make it difficult.
MR. SMITH: All right, Senator Joe Biden, thank you for joining us this morning; do appreciate it.
SEN. BIDEN: Thank you very much, Charlie.
MR. SMITH: Harry.
SEN. BIDEN: Appreciate it.
MR. SMITH: That's all right.