New York Times
February 1, 2006
WASHINGTON, Feb. 1 — The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush's domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.
The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.
But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in the department saw any concrete limits to the president's powers in fighting terrorism.
With the committee scheduled to hold the first public hearing on the eavesdropping program on Monday, the Justice Department's stance could provoke another clash between Congress and the executive branch over access to classified internal documents. The administration has already drawn fire from Democrats in the last week for refusing to release internal documents on Hurricane Katrina as well as material related to the lobbyist Jack Abramoff.
Several Democrats and at least one Republican have pressed the Justice Department in recent days to give them access, even in a closed setting, to the internal documents that formed the legal foundation of the surveillance program. But when asked whether the classified legal opinions would be made available to Congress, a senior Justice Department official said Wednesday, "I don't think they're coming out."
The official said the administration's legal arguments had already been aired, most prominently in a 42-page "white paper" issued last month. "Everything that's in those memos was in the white paper," said the official, who, like other administration and Congressional officials, was granted anonymity because classified material was involved.
While the administration has spent much of the last two weeks defending the legality and necessity of the surveillance program, the Judiciary Committee session will be the first Congressional hearing on it. Senator Arlen Specter, the Pennsylvania Republican who leads the panel, said Wednesday that he had "a lot of questions" the administration had not yet adequately answered about the program's legal rationale.
Mr. Specter would not address the committee's request for the classified legal opinions, except to say, "that's not a closed matter — we're still working on that."
Several Democrats on the panel have made formal requests for the legal opinions, including Senator Dianne Feinstein of California.
In the interview, Mr. Specter said that he wanted a fuller explanation as to how the Justice Department asserts that the eavesdropping operation does not conflict with the 1978 Foreign Intelligence Surveillance Act, which set strict and "exclusive" guidelines for intelligence wiretaps.
The operation was approved by President Bush, to allow the National Security Agency to conduct wiretaps on Americans' international communications without a court warrant. Mr. Specter said his view was that the operation "violates FISA — there's no doubt about that."
He also questioned why the administration did not go to Congress or the intelligence court to seek changes in the process before moving ahead on its own with the classified program after the Sept. 11 attacks.
Representative Jane Harman, the California Democrat who was one of the few members of the Congress briefed on the operation, echoed that same theme in a letter sent Wednesday to President Bush.
She said in the letter that with changes made to the foreign intelligence law after the Sept. 11 attacks, the eavesdropping operations of the N.S.A. "can and should" be covered by court-approved warrants, "without circumventing" the process.
Attorney General Alberto R. Gonzales will be the lone witness at next week's hearing, and his aides said he was entering it with confidence about the program's legal footing, based on both the president's inherent constitutional authority and a Congressional authorization after the Sept. 11 attacks to use military force against terrorists. But both Republicans and Democrats said Wednesday that they planned to question Mr. Gonzales about those assertions.
While the administration has laid out its legal defense repeatedly in the last two weeks, the formal legal opinions developed at the Justice Department to justify the program remain classified. The administration has refused even to publicly acknowledge the existence of the memorandums, but The New York Times has reported that two sets of legal opinions by the Justice Department's Office of Legal Counsel asserted the president's broad power to order wiretaps without warrants in protecting national security.
The first Justice Department opinion is thought to have been written in late 2001 or early 2002 by John Yoo, a strong proponent of expanded presidential powers in wartime. The second opinion, officials said, was drafted by Jack Goldsmith, another senior department official who later left to teach at Harvard. It came in 2004 at a time some senior officials at the Justice Department were voicing concerns about the program's legal foundation and refusing to sign off on its reauthorization.
Those concerns led in part to the suspension of the surveillance program for several months and also appear to have led Mr. Goldsmith and other Justice Department lawyers to revisit the question of its legal underpinnings in order to satisfy those concerns.
Members of the Judiciary Committee have sought access to the memorandums, officials said. Some Democrats speculate that the classified memos may contain far-reaching and potentially explosive legal theories similar to those advocated by Mr. Yoo and others, and later disavowed by the Justice Department, regarding policies on torture.
In a letter sent Wednesday to Mr. Gonzales, Mrs. Feinstein said the legal opinions and other internal documents were needed for Congress to assess whether the president "has the inherent authority to authorize this surveillance."
With two additional hearings scheduled on the program after Mr. Gonzales's appearance, Mr. Specter said he was also considering seeking testimony from former Justice Department officials, and perhaps even input from the FISA court itself.
But Senator Charles E. Schumer, a New York Democrat who also serves on the Judiciary Committee, said the panel should consider issuing subpoenas if the administration is not more forthcoming in providing documents and witnesses.
"Without the Justice Department memos and without more witnesses, it's hard to se how anything other than a rehashing of the administration line is going to happen," Mr. Schumer said Wednesday. "I am worried that these hearings could end up telling us very little when the American people are thirsty to find out what happened here."