Leahy threatens to subpoena Bush officials

The incoming chairman of the Senate Judiciary Committee said Wednesday that he would subpoena Bush administration officials if they refused requests for documents and testimony, including two long-sought memos detailing its detention and treatment of terrorism suspects overseas.

The comments by Sen. Patrick J. Leahy (D-Vt.) represent the strongest and most specific statements yet directed at the White House on the investigative agenda of the Democratic leaders poised to assume control of Congress in January.

Leahy’s threat shows the depth of frustration among Democrats who believe the administration has withheld crucial details about some of the most provocative anti-terrorism moves since the Sept. 11 attacks.

“I expect to get the answers. If I don’t ... then I really think we should subpoena,” Leahy said after a speech at Georgetown law school. “If the president wants to claim executive authority, then let him do so, and then we can determine where we go from there.”

The remarks signaled a possible legal confrontation with the White House over what Democrats and many legal scholars view as its expansive and unchecked use of executive power. It also marks a possible return to the use of an oversight tool that has been all but forgotten by the Republican-led Congress over the first six years of the Bush administration.

“I’m not trying to set up the idea of a confrontation for the sake of a confrontation,” Leahy said. “I hope people will pay attention, will answer questions. We’ll try it that way first.”

Leahy has his sights set on two administration documents that have been among the most controversial for human rights and civil liberties groups concerned about the U.S. response to the Sept. 11 attacks and the Iraq war.

One is a presidential order signed by Bush authorizing the CIA to set up secret prisons outside the United States to house terrorism suspects. The other is a 2002 Justice Department memorandum outlining “aggressive interrogation techniques” that could be used against terrorism suspects.

Though the two documents have been known about for years, the Bush administration has kept them under wraps, only acknowledging their existence this fall after Bush transferred 14 detainees from the prisons to the military detention center at Guantanamo Bay, Cuba, for possible trials.

Leahy has made a number of sweeping demands for documents about the treatment of detainees from the Justice Department and other agencies, only to have most of them returned unanswered. Last month, he made a request to Atty. Gen. Alberto R. Gonzales for the presidential order and Justice Department memo. Leahy said he expected Gonzales to testify before the judiciary committee “soon.”

Justice Department spokesman Brian Roehrkasse said Wednesday that the request was being reviewed.

“The department will continue to work closely with the Congress as they exercise their oversight functions, and we will appropriately respond,” Roehrkasse said, adding that the department would work with the committee “to provide information that it legitimately needs.”

“In the past we’ve reached accommodations, and working together we expect we can do so in the future as well,” he said.

The issuance of subpoenas would mark a new and combative chapter in that relationship.

For years, the Republican-controlled Congress has relied on the administration to voluntarily provide testimony and documents, reinforcing its reputation, at least among Democrats, as a rubber stamp for Bush policies. The judiciary committee has issued subpoenas in recent years, but they have tended to target private firms rather than government figures.

Though Leahy said he would appeal to the administration’s sense of bipartisanship, he also indicated that Congress might not hesitate to ensure compliance with its requests.

Legal experts said the most effective way to enforce a subpoena is to use the power to withhold funds from administration projects or to refuse to consider nominees who require Senate approval -- courses that Leahy said the committee would consider.

“Congress has the ability to make sure that the president does what the Constitution requires him to do to faithfully execute the laws,” he said.

Leahy also said he would press for more information about the administration’s domestic surveillance program under which the National Security Agency has monitored communications between suspected terrorists abroad and people in the U.S. without first obtaining a warrant.

Congress considered legislation this fall that would essentially ratify the controversial program, which one federal court has found to violate the Constitution. But Leahy said he could not support any such legislation until he knew more about the program.

Leahy also promised tougher legislation to crack down on war profiteering by private contractors in Iraq, and restrictions on the government’s ability to secretly collect dossiers on airline travelers. He said he would push to overturn portions of the new Military Commissions Act of 2006 that stripped terrorism suspects of the right of habeas corpus to challenge their detention in the courts.

He also said he would set up a new judiciary subcommittee to oversee international human rights issues, including torture.

“This election was an intervention,” he said. “The American people rose up to take away Congress’ rubber stamp, and to demand a new direction with more accountability.”

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rick.schmitt@latimes.com