1st Amendment Expert Interview

Randall Pinkston Talks To Attorney Floyd Abrams About Bush's Eavesdropping Program

(CBS) 
CBS News: The president said it was classified information, that it was a secret program. Doesn't that automatically mean the revelation is a violation of the law?

Abrams: No. We do not have a statute in America. The English do. The French do.

We don't have a statute which makes the leaking of any classified information illegal.

I see a great connection between the White House's position on this and a wide range of actions that they've taken where the president has said basically, 'I can do this because I am president. I can do this because the Constitution gives the president sweeping authority in the area of foreign affairs'.

That's a serious position. I think the president overstates it and I think his advisors have gone much too far in claiming basically, unrestricted authority for the president in this area even when Congress has passed a law to the contrary.

Here we have this extraordinary situation where Congress passed a law, we have a law on the books which prevents the NSA from doing precisely what the president authorized.

He's renewed his authorization but he's never gotten congressional approval. But he claims it is mitigated by the fact that he's informed members of Congress. It is mitigated in the sense that Congress was not completely uninformed. As a legal matter though, what the president has authorized 30 times may have been illegal 30 times. There is a law on the book that makes it a crime of the NSA to spy on Americans.

The president is obviously doing what he thought was best to defend the country, but when you do that, you also have to defend the civil liberties of Americans.

Usually when the president says something the press has done is bad for national security, the public usually goes along with the president.

I think there should be a Congressional investigation, an oversight hearing, such as Senator Specter said he will do, to see just what the government did… If they have to hold parts of (the hearing) secret, they can do that and then we can move on from there.

CBS News: What's the danger here?

Abrams: The danger is that we can wind up with a government so secret and so closed that the public won't find out what's going and got so powerful that it intrudes into the privacy of every American.

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Note: Floyd Abrams often represents the New York Times but says he's had no involvement with the paper over this particular controversy.