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1st Amendment Expert Interview

Floyd Abrams, a First Amendment expert, waits for his client New York Times reporter Judith Miller in front of the E. Barrett Prettyman U.S. District Court October 7, 2004 in Washington, D.C.
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CBS News correspondent Randall Pinkston interviewed First Amendment legal expert Floyd Abrams about President Bush's controversial authorization of secret eavesdropping programs in the U.S. Following are excerpts of that interview.


CBS News: In your opinion, were any laws violated by the New York Times in publishing the revelation about the NSA wiretapping?

Abrams: No, there is no law which makes it a crime for the Times to have printed this.

CBS News: What is the president's complaint?

Abrams: I think what the president is saying is that whoever provided information to the Times may have violated the law. More broadly, I think what the president's saying is that it was wrong, it was unpatriotic, it was harmful for the Times to have published this.

What the president is not saying though, is that he may have violated the law. We have a law on the books and we had it when this was done, which made it illegal for the NSA to spy on American citizens. The government made no effort in the Patriot Act, which they were proposing, to change that. They made no effort to get authority from any judge. They simply went and did this on their own.

CBS News: The president argues that constitutional powers under Article Two as well as legislation passed by Congress gave him the right to do anything necessary to protect the country from terrorists.

Abrams: These are important legal issues and they're not all easy, but one starts, I think, with the notion that what the president authorized Congress had already said, in so many words, could not be done… that the NSA may not spy on Americans. That's what the law was. Now, the president says that, in the special emergency of 9-11, basically, anything goes.

I understand that. He may even be right. But even if he's right, that should end at some point, not long after 9-11. If he needs Congressional authorization, he ought to go to Congress. He should not do what he did, which is to simply root everything into this very broad notion of presidential powers and go ahead and authorize action which is flatly contrary to an on-going, still-in-effect law of Congress.

So when you talk about violating laws here, the president himself has answering to do.

CBS News: What about his point that the publication of this matter is at a minimum, unpatriotic and should not be done in this particular environment?

Abrams: This is a story that the New York Times held for a year, at the request of the White House, as to which they did not publish all that they knew even now.

Was it unpatriotic? No. I think it is patriotic, at the end of the day, to expose potential wrongdoing, even if it's by our own government, even our own leaders and that's what the Times did. The Times didn't publish any fact here which in and of itself would lead an Osama Bin Laden to say, 'Ah, now I know this, or now I know that.' … I think what (the New York Times) did was to inform the public that something was going on, which, on the face of it, was probably illegal and which the government ought to have somebody looking over their shoulders to tell the people about.

  • Stephen Smith

    Stephen Smith is a senior editor for CBSNews.com