MATTHEWS: Why do you think the president choose not to go to the court that was established with your help?
KENNETH BASS, FMR. FISA COURT COUNSEL: Chris, it‘s very hard from what‘s been said publicly for me to figure out why they didn‘t try to go to the court. Because when we were there, when we first set up the court, we had a policy of going to the court even if the statute didn‘t authorize us to go to court.
MATTHEWS: Why?
BASS: Well, because we believed in sharing the power.
MATTHEWS: The responsibility too.
BASS: And the responsibility.
MATTHEWS: So you only could intercept information from somebody‘s email or back then it wasn‘t emails, it was just phone calls. You wanted to have the authority behind you to do that.
BASS: And we wanted to have the blessing of the courts. I mean, the whole issue is what you‘re doing reasonable. And if you can subject what you‘re doing to the judgment of somebody else, an independent judge, who also looks at it, say it‘s reasonable, you‘re just in much better shape, legally, politically, from a moral standpoint, every other way.
MATTHEWS: Let me ask you about two conditions. One is the post 9/11. In the first 48 hours, 96 hours, two weeks after we were hit so hard, was it reasonable to assume that the president had a right to go to extreme measures just because we were under assault?
We didn‘t know whether there was going to be another shoe to drop, another attack somewhere in Chicago or Detroit or somewhere else, and therefore he needed to move quickly in finding out everything we could electronically. They would not go to the courts because it would have slowed them down.
BASS: He didn‘t have to go to the courts. There was a 72-hour emergency provision. And then for 72 hours they could have done surveillances and then go to the court if what they had was something that showed agency of a foreign power.
There are always provisions built into the Foreign Intelligence Surveillance Act to try and deal with the horribles, the hypotheticals. There‘s a war provision in there, for example, that the president could also have invoked in those early hours.
The problem is it has gone on for four years, and it‘s gone on for four years without Congress knowing about it and without knowing the details and without being in a position to assess its reasonableness.
http://www.msnbc.msn.com/id/10882510/