[Kitty Pilgrim, Cnn Anchor:] Good evening, everybody. Tonight, the federal government has been spying on Americans for three years without a warrant. Plus, a top general gives details of the first troop withdrawals from Iraq since the Iraqi elections. Then, JibJab is back with a hilarious review of the president's year. The creators of JibJab will join me. Congress moves closer to a crackdown on illegal aliens. We'll have all that and more ahead, plus three of the country's top political analysts. Well, we begin tonight with a new assault on the Bush administration's anti-terror policies. There's outrage after the president authorized the National Security Agency to spy in this country without court approval. Reports say the NSA monitored phone calls and e-mails of terrorist suspects. The Senate has also refused to extend parts of the Patriot Act. Many senators expressed concern about the NSA spying operations. Ed Henry reports from Capitol Hill Ed.
[Ed Henry, Cnn Correspondent:] Kitty, this was already a fiery debate about the Patriot Act whether it's violating civil liberties. But "The New York Times" revelation poured gasoline on that fire.
[Sen. Patrick Leahy , Vermont:] This warrantless eavesdropping program is not authorized by the Patriot Act, a secret presidential order, based on secret legal opinion by the same Justice Department lawyers, the same ones who argue secretly that the president could order the use of torture.
[Henry:] Senate Majority Leader Bill Frist fell eight votes short of cutting off the filibuster, which means 16 key provisions of the Patriot Act will expire at the end of the month. The lead Republican, trying to save the provisions, said "The New York Times" story tipped the balance.
[Sen. Arlen Specter , Chairman, Judiciary Committee:] Very, very problemsome, if not devastating.
[Henry:] One Democrat suggested the story was the deciding factor for him.
[Sen. Chuck Schumer , New York:] But I went to bed, as I said, undecided. But today's revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote.
[Henry:] But the Republican who helped lead the filibuster said the bill already had big problems: secret search warrants and roving wiretaps that raised civil liberties concerns.
[Sen. John Sununu , New Hampshire:] I think the die was cast well before this story came out this morning.
[Henry:] But a leading Republican had a dire warning for the 41 Democrats and four Republicans who voted to let the provisions expire.
[Sen. Jon Kyl , Arizona:] God help us if there's some kind of terrorist attack when we are not protected by the Patriot Act and the act could have enabled our law enforcement or our intelligence people to help protect us. We will have to answer for that.
[Henry:] Now Senator Frist has a procedural right to bring this back up for a vote any point in the next few days or next year. But if he doesn't do it in the next few days and he doesn't get the votes to actually get it passed, it's going to expire. These provisions will be done. That will be a big blow to the White House, Kitty.
[Pilgrim:] Thanks very much, Ed Henry. Thanks, Ed. Well, CNN has confirmed President Bush signed a secret order to let the National Security Agency spy on people in this country. It's not clear what the president's order said or what that order allowed. Kelli Arena reports.
[Kelli Arena, Cnn Correspondent:] Shortly after the September 11 attacks, government sources confirmed that President Bush issued a secret order to allow the National Security Agency to eavesdrop on people in the United States as part of terrorism investigation, a move first reported by "The New York Times," which critics say is illegal.
[Kate Martin, Center For National Security Studies:] The laws couldn't be any more clear. You can only wiretap an American if you have a warrant.
[Arena:] Such a warrant can be approved by a secret intelligence court, housed in the Justice Department, and the eavesdropping is usually done by the FBI. But government sources with knowledge of the program say the president's order bypasses all that in the interest of getting intelligence more quickly. And according to many security experts, the NSA is in the best position to do that.
[Richard Falkenrath, Cnn Security Analyst:] They have a wide range of capabilities. They're all very sensitive, highly classified for good reason. But they present the largest and most sophisticated capability.
[Arena:] Administration officials will not confirm the change or deny it, creating an uproar on Capitol Hill.
[Sen. Edward Kennedy , Massachusetts:] They tell us, "Trust us, we follow the law." Give me a break.
[Arena:] In a press conference on an unrelated matter, Attorney General Alberto Gonzales would only say that winning the war on terror requires winning the war of information.
[Alberto Gonzales, Attorney General:] So we will be aggressive and obtain that information, but we will always do so in a manner that's consistent with our legal obligations.
[Arena:] The phone and e-mail communications that are being monitored by the NSA, according to government sources, are those taking place between people in the U.S. and individuals overseas. And they say the NSA eavesdrops in the U.S. without warrants as many as 500 people on any given time Kitty.
[Pilgrim:] Thanks very much, Kelli Arena. Now "The New York Times" learned about the NSA spying operation one year ago but decided not to leak the story immediately. The "Times" said the Bush administration argued that early publication could jeopardize continuing terror investigations. And "Times" executive editor Bill Keller said two things changed the newspaper's thinking on whether to publish, and the first was, Keller said, the "Times" "developed a fuller picture of the concerns and misgivings that have been expressed during the life of the program." And also Keller said, "The "Times" satisfied itself that it could write about this program in a way that would not expose intelligence gathering methods or the capabilities that are not already on the public record." Now, President Bush today refused to say whether he authorized the NSA to spy on people in this country. In a PBS interview the president said he would not compromise, quote, "ongoing intelligence operations," unquote. Elaine Quijano reports from the White House Elaine.
[Elaine Quijano, Cnn Correspondent:] Kitty, President Bush is neither confirming nor denying the report of domestic spying by the NSA, but the report is certainly raising questions about protecting civil liberties. In that interview, airing tonight on PBS, the president would not comment on specifics, but he insisted that his administration is striking the proper balance between national security and privacy rights.
[George W. Bush, President Of The United States:] I know that people are anxious to know the details of operations, that people want me to comment about the veracity of the story. The policy of this government is not going to do it. The reason why is that because it would compromise our ability to protect the people. I think the point that Americans really want to know is twofold. One, are we doing everything we can to protect the people? And, two, are we protecting civil liberties as we do so? And my answer to both is yes, we are.
[Quijano:] And many members of Congress upset about this. In fact, Republican Senator Arlen Specter, who heads up the Senate Judiciary Committee, says he plans to hold hearings on this early next year. He told reporters, quote, "There is no doubt that this is inappropriate." The White House though, Kitty, continuing to insist that there is congressional oversight of the U.S.'intelligence activities Kitty.
[Pilgrim:] Thanks very much, Elaine Quijano. Joining me now for more on this spying controversy is our senior legal analyst, Jeffrey Toobin. Jeff, what's your reaction to this whole report?
[Jeffrey Toobin, Cnn Legal Analyst:] It's really an example of how much the world has changed since the 1970s, when these laws regulating the intelligence gathering were passed. We had one enemy in those days, and the technology was basically a telephone. Now, we have, unfortunately, multiple enemies with all sorts of cheap, easy to use technology at their disposal, everything from Blackberries and Sidekicks to cell phones, and the government has tried to respond to that. The government's problem, it seems, is that, instead of following the law, in terms of how you tap people in this country, they seem to have just done it on their own. And that's where the Bush administration got in trouble.
[Pilgrim:] Now there's discussion that the intelligence surveillance court could give authorization within hours. Should they have gone through that?
[Toobin:] That's certainly the question. And the court is set up precisely for this reason, to regulate national security taps on people in this country. I mean, people shouldn't be surprised that this kind of tapping goes on. It does go on, but it is regulated somewhat by this court. And I say only somewhat because this court is more or less a rubber stamp. It's not like this court turns down many requests, in fact, just a handful in many years. But the government is supposed to go through the motions, at least, of asking for its permission, and apparently they didn't do that.
[Pilgrim:] If they're backtracking on some information that they get from a cell phone in Pakistan or a database in Pakistan, and it lands here in the United States, I could see an entire contingent of Americans saying, "Yes, I do want them to trace that."
[Toobin:] Absolutely. And remember, you're talking about cell phones. People throw them away every day, especially if, presumably, if you're a criminal and you're trying not to be caught. The speed is so different. This law was set up when we were tapping the Soviet embassy, and everybody knew where the Soviet embassy was and you saw the aerials. It was very simple. This is not simple, and speed is important. But it seems lying like what the Bush administration should have done is change the law so they followed the law. And I'm sure Congress would have let them change the law, but doing it unilaterally seems to have gotten them in some trouble and, politically, is responsible for the loss of the Patriot Act today.
[Pilgrim:] Thanks very much, Jeff Toobin. Well, that brings us to tonight's poll. Should the White House have the authority to authorize eavesdropping on American citizens? Do cast your vote: loudobbs.com. We'll bring you the results a little bit later in the broadcast. And still ahead, a tough measure to control illegal immigration passes a major hurdle in Congress. We'll have a special report. Plus, how the federal government has spent nearly half a billion dollars on border security technology that doesn't work properly. And 2005 is not over yet but that hasn't stopped the folks at JibJab from taking aim at President Bush for his record this year. The creators will join me later in the broadcast. Stay with us.