HARDBALL FISA EXPERT: DATA-MINING DEFINITIVELY LEGAL; NSA INTERCEPTS MIGHT VERY WELL BE

HERE'S SOME OF THE TRANSCRIPT FROM TODAY'S HARDBALL SHOW (MSNBC):

MATTHEWS: ... For a behind the scenes view as to what is going on inside the highly secret foreign intelligence surveillance court, we turn to Ken Bass, who was a counsel, helped create the court back in ‘78. [Meaning he is probably a liberal Democrat, since Carter was in the White House and the Dems controlled the Congress - reliapundit] ... Do you think that this is an egregious matter here, or just a technical on, the fact that the president hasn‘t gone to the FISA courts, to the surveillance courts, to get approval..

BASS: I don‘t know enough to tell you the answer yet. All the critical factors are still classified. The whole role of the NSA was carefully structured in the Foreign Intelligence Surveillance Act. We set some provisions in there for the NSA to do what it‘s been doing for decades without going to the FISA court. We‘re not sure at all that what we intended is what‘s going on here. There‘s just way too much ambiguity.

MATTHEWS: I told you before, that the Americans have different reactions. A lot of Americans say this is a time of war, we‘re fighting terrorism. Let‘s not be squeamish about catching the enemy. If somebody‘s been on the phone with an al Qaeda person overseas, let‘s nail the bastard.

That‘s the attitude most of us have. Think it‘s reasonable, if it‘s somebody who‘s actually involved in that kind of terror against the United States, that‘s reasonable. Then again, people say don‘t be checking into my phone lines by accident and don‘t be checking on my stuff, because I may be a liberal or a skeptic about this administration‘s policies. Who draws the line?

BASS: That‘s why we had the FISA court in the first place. The court was going to supervise where the executive drew the line. That whole issue of whether people feel good about it tends to reflect a sort of ambivalence. They say I want civil liberties protected, but I don‘t want to worry about it, because they‘re not going to targeting me.

The fact is, depending on what they are doing, they could be picking up U.S. news people who are in conversation with Iraqis. When they say that they‘re only targeting known al Qaeda, if you listen to the segment you just had, what‘s a known al Qaeda? Is it somebody who happens to be in Iraq at the wrong place at the wrong time?

MATTHEWS: What about this new technology called data mining, where they go out—I don‘t even know this world, but I know it‘s out there— they can look at the world of email and they can look—throw out a big fish net and say let‘s look at everybody who‘s used the phrase Lincoln Tunnel or Empire State Building or Sears Tower.

Anybody between here and that al Qaeda land over there, those Arab countries, is using words like that on the phone, we want to know who they are. Can you go to a FISA court and say went to lasso everybody who‘s used the word Lincoln Tunnel in the past three weeks?

BASS: No, but that‘s not really a new technology. The same thing was happening at the time FISA was passed with a different form of communication.

MATTHEWS: The phone?

BASS: Not the telephone so much. A different form of communication, which I can‘t get into the details. The fact of the matter is that the act was intentionally set up to allow N.S.A. to do data mining, as long as they weren‘t targeting specific individuals.

The issue here is that, based on what the administration has said, it sounds very much like instead of looking for phrases, they‘re looking for individuals. And that they‘ve been targeting Americans, based on evidence that they think is not sufficient to go to the FISA court. That‘s the troubling issue.

MATTHEWS: So the court would have permitted data mining for particular phrases?

BASS: It didn‘t get into the business of data mining phrases?

MATTHEWS: But if it had been asked, it could have said yes?

BASS: It was all prized [sic!?] under the statute and it‘s been done for decades.

MATTHEWS: You‘re the first person to say it, because some people say the reason that this administration didn‘t go to the FISA courts to get approval to intercept key phrases that might have to do with the targeting of U.S. iconic facilities, buildings, is because you can‘t get approval for such a broad scope.

BASS: You can‘t get the approval, but Chris I can assure you, because I worked on the issue when FISA was enacted, that we consciously knew about data mining at that time and we knew that searching for phrases was not to be covered by the Foreign Intelligence Surveillance Act and it‘s covered through a process of minimizing use of the information. The difference is you‘re not targeting individuals.

MATTHEWS: OK. Thank you very much. Ken Bass.

This is especially interesting since it was aired on the Left-wing HARDBALL show, hosted by long-time Democrat operative Chris Matthews. BASS was obviously not convinced by anything which has yet been made public to date - INCLUDING ALL THE STUFF IN THE NYTIMES - that Bush has actually done anything wrong. I think the Democrats - and others skeptical about "the NSA International al Qaeda Communications Intercept Program" - would be wise to adopt his concerned and thoughtful tone (and that of Jane Harmon, for another example), rather than the hyperbolic insanity of Gore, Daschle, Pelosi, Dean, Reid, Kennedy and Kerry.

BOTTOM-LINE: There is probably NO SCANDAL HERE AT ALL. Except for the leak. As for the over-reaction of the Left: that was as predictable as it is off-putting. As Joe Klein wrote (echoing Matthews' comment above - about not being "squeamish"):

Democrats are on thin ice here. Some of the wilder donkeys talked about a possible Bush impeachment after the NSA program was revealed. The latest version of the absolutely necessary Patriot Act, which updates the laws regulating the war on terrorism and contains civil-liberties improvements over the first edition, was nearly killed by a stampede of Senate Democrats. Most polls indicate that a strong majority of Americans favor the act, and I suspect that a strong majority would favor the NSA program as well, if its details were declassified and made known. [...] and until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country.