Justice Dept. on NSA documents: ‘I don’t think they’re coming out’

February 2, 2006

About a month ago, Bush shifted gears on congressional hearings over his warrantless-search program. After the White House had resisted the very idea of hearings for about a month, Bush said he welcomed congressional oversight and said hearings would be “good for democracy.” There was, of course, a catch.

“Just so long as the hearings, as they explore whether or not I had the prerogative to make the decision I make, doesn’t tell the enemy what we’re doing. See, that’s the danger.”

The idea was that the White House would tolerate Senate hearings into the controversy, but would only address legal issues surrounding administration authority, not practical or implementation questions that could reveal details of the domestic surveillance program.

And yet, a month after Bush acknowledged that the Senate can explore Bush’s legal authorities, the administration has taken yet another position: internal legal opinions on the spying program are off-limits.

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.

Once again, Congress faces a decision: do their duty or roll over for the White House. Again.

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.”

Work fast, Arlen, hearings start next week.

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.” We’ll see.

The problem with the white house legal documents is too many of them will say something like: “This is how we are going to break FISA and congressional oversight of foreign intelligence surveillance.”

rather than:

“We really can’t do this program under FISA warrant requirements, so we need to find another legal justification.”

😉

  • Bush has used the meme that he cannot receive “unvarnished” advice from his advisors if he cannot protect the confidentiality of that advice. The other day I think he said they would not give “unvarnished” advice if they knew it would be subject to scrutiny. This, essentially, is saying that (in Bush’s view of the world) there is no mechanism by which the Executive can be held accountable. I wonder how long a CEO could hold his job if he told his shareholders that they were not entitled to review documents relevant to an alleged violation of important company policy by that CEO. It is amazing to me.
    I have no faith in Specter. They cowed him at the outset of his chairmanship, and though he makes noises now and then, he doesn’t follow through. He and Linc Chafee are going to spend a lot of “woulda, coulda, shoulda” time on their front porches in days to come.

  • Actually, anyone who can read can know what the White House and NSA are doing.

    It’s been published.

    Read the article entitled “The Killer App” in the April 2003 issue of Men’s Journal.

    It tells all about the computer software designer’s program that he presented to the NSA sometime before 2003.

  • The above was in regards to:

    Justice Dept. on NSA documents: ‘I don’t think they’re coming out’
    Posted 1:04 pm | Printer Friendly
    About a month ago, Bush shifted gears on congressional hearings over his warrantless-search program. After the White House had resisted the very idea of hearings for about a month, Bush said he welcomed congressional oversight and said hearings would be “good for democracy.” There was, of course, a catch.

    “Just so long as the hearings, as they explore whether or not I had the prerogative to make the decision I make, doesn’t tell the enemy what we’re doing. See, that’s the danger.”

  • If Congress does not already, they should have the power to imprison. When agencies or individuals fail to respond to Congressional request or demands (legitimate, bipartisan ones) they should just start putting folk in jail, and keep putting them in jail until they comply. That is ……follow the law.

  • I have just emailed the following to Senator Specter.

    Dear Senator Specter,

    I am writing to thank you for holding the much needed Judiciary Hearing on Wartime Executive Power and NSA’s Surveillance Authority and to express a concern.

    ISince the New York Times first reported on the NSA program which prompted your hearing (NYTimes 12/16/05), the members of the Bush administration have been on an all out public relations campaign to convince the American people of both the legality and necessity of this program. My concern is that Attorney-General Gonzales will try to use your hearing as one more venue in this campaign. I have two recommendations which might prevent this from happening.

    IFirst, be very tough in your questioning of the Attorney-General. This administration has been contemptuous of Congress and of the American people. One striking example, and by no means the only example, of this contempt is the misleading answer under oath given by Gonzales during his confirmation hearings to become Attorney-General to a question about warrantless eavesdropping which was asked by Senator Feingold. (WashPost, 01/31/06) There is no reason to believe that he will be any less evasive or misleading during your upcoming oversight hearing. Demand straightforward answers to all questions. And, by all means, do not allow him to avoid answering tough questions with glib references to national security.

    ISecond, an important check on Gonzales’ already questionable veracity will be given by comparison of his testimony with the written record of the administration’s internal deliberations on the legality of the NSA program. The administration has declined to turn this material over to Judiciary Committee. (NYTimes, 02/02/06) Without these documents Gonzales’ testimony will be meaningless. They must be subpoenaed.

    IToo many of your Republican colleagues in the Senate have shown more loyalty to the Party than they have to the Nation. They have repeatedly failed in their oversight duties. You, on the other hand, have a deserved reputation as an independent man of principle. These hearing may be the greatest test you have had to date of both your independence and your principles. Do not fail yourself. Do not fail your constituents. Do not fail the Nation. Hold President Bush accountable to the law.

  • For the record here is the form letter that I received in response to my letter to Senator Specter.

    Thank you for contacting my office regarding President Bush’s secret domestic surveillance program. I appreciate your concern regarding this important matter.

    Law enforcement officials must be provided with as much information and as many tools as possible to ensure the protection of our country, but those resources cannot come at the expense of citizens’ civil liberties. I believe that it was wise for the President to be candid with the American people concerning his surveillance program. It is important at this point that the matter does not become politicized, because this is a time for analysis and oversight, not attacks.

    The U.S. Constitution limits the President’s ability to conduct surveillance or searches of United States persons while residing within the United States . In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) which permits federal agents to conduct electronic surveillance on United States persons in order to acquire foreign intelligence without obtaining a traditional Title III search warrant. FISA does, however, require a FISA court order approving the surveillance. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights within the United States . I have scheduled Congressional oversight hearings in order to make sure that we are able to maintain this delicate balance.

    Thank you again for taking the time to bring your views on this important matter to my attention. As your United States Senator, it is essential that I be kept fully informed on issues of concern to my constituents. Be assured that I will keep your thoughts in mind on this issue and related issues in the 109 th Congress. Should you have any further questions, please do not hesitate to contact my office or visit my website at http://www.specter.senate.gov.

    Sincerely,

    Arlen Specter

    • Comments are closed.