Wiretap subpoenas prod administration

Times Staff Writer

A Senate committee investigating the Bush administration’s domestic wiretapping program subpoenaed the White House, Vice President Dick Cheney’s office and the Justice Department on Wednesday for information regarding their legal justification for the warrantless secret surveillance.

The subpoenas by the Judiciary Committee set the stage for another legal and political battle between Senate Democrats and the Bush administration over its counterterrorism and law enforcement policies. Earlier subpoenas issued by Democratic lawmakers to current and former White House officials have essentially been ignored.

Legal experts suggested Wednesday that the administration would fight or ignore these subpoenas, too, throwing the issue into federal court, perhaps even the Supreme Court. The ultimate outcome, they said, could be an out-of-court compromise that gives lawmakers at least some insight into the legal machinations surrounding the top-secret National Security Agency program.

President Bush authorized the domestic surveillance program soon after the Sept. 11, 2001, terrorist attacks, allowing the NSA to monitor international phone calls and e-mails to or from the United States involving people that authorities suspected of having links to terrorists.


In letters accompanying the subpoenas, Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) said the panel had made at least nine formal requests for such documentation from the White House and the Justice Department, but all were rebuffed.

Moreover, Leahy said in the letters that attempts to get senior administration officials to testify before Congress on the legality of wiretapping “have been met with a consistent pattern of evasion and misdirection.”

Leahy noted that the Judiciary Committee was not seeking operational details of the program, which remains highly classified. But he said the committee was charged with oversight of the executive branch in the areas of constitutional protections and the civil liberties of Americans.

“The warrantless electronic surveillance program directly impacts those responsibilities,” Leahy wrote. “We cannot conduct this oversight without knowing the legal arguments the Administration has used to justify interception of the communications of Americans without a warrant.”

Leahy said he was issuing the subpoenas in consultation with the ranking Republican on the panel, Sen. Arlen Specter of Pennsylvania. Two other senior Republicans on the committee, former chairman Orrin G. Hatch of Utah and Charles E. Grassley of Iowa, also voted with Democrats last week to give Leahy the power to issue the subpoenas.

Leahy gave those receiving the subpoenas until July 18 to comply.

White House spokesman Tony Fratto condemned the subpoenas as an act of political partisanship, and did not say whether the administration would comply with them.

“We’re aware of the committee’s action and will respond appropriately,” Fratto said. “It’s unfortunate that congressional Democrats continue to choose the route of confrontation.”


Fratto said the so-called terrorist surveillance program is “lawful, limited, safeguarded and -- most importantly -- effective in protecting American citizens from terrorist attacks. It’s specifically designed to be effective without infringing Americans’ civil liberties.”

After the existence of the surveillance program was disclosed in December 2005, Bush defended it as necessary to fight a shadowy terrorist enemy with expertise in shrouding its plotting and communications in secrecy. Bush also said the program was legal, approved by at least some members of Congress, and that he had authority to authorize the eavesdropping as commander-in-chief, using expanded war powers granted to him by Congress.

The White House initially claimed that the program did not require court approval, but was challenged in court. The administration agreed earlier this year to allow it to be reviewed by the Foreign Intelligence Surveillance court.

The president still claims the power to order warrantless spying.


A Judiciary Committee staffer said the senators want documents that could shed light on internal deliberations and disputes within the administration over the legality of the program, including who in the Justice Department expressed concerns about it, and when.

Former Deputy Atty. Gen. James Comey testified last month before the committee that he, former Atty. Gen. John Ashcroft and FBI Director Robert S. Mueller III threatened to resign after the White House tried to override their objections to the program in 2004.

Comey said that effort included a nighttime visit by the current attorney general, Alberto R. Gonzales, who was then White House counsel, and Andrew H. Card Jr., then the White House chief of staff, to the hospital bed of an ailing Ashcroft, to get him to reverse course and recertify the program.

Ashcroft refused and Bush ultimately made changes to the program that the senior Justice Department officials demanded.


No one involved has commented publicly on what those changes were or what kind of domestic spying had been going on previously.

“After we learned from Jim Comey about the late-night hospital visit to John Ashcroft’s bedside, it was even more imperative that we find out the who, what, how and why surrounding the wiretapping of Americans without warrants,” another Judiciary Committee member, Sen. Charles E. Schumer (D-N.Y.), said Wednesday.

The subpoenas also seek information about the apparent shutdown of an investigation into the eavesdropping by the Justice Department’s Office of Professional Responsibility.

“This bumps up the stakes by threatening a court showdown,” said Richard Ben-Veniste, a former Watergate prosecutor who also served on the commission that investigated the Sept. 11 attacks.


Ben-Veniste said such a court battle could be drawn out, and that “perhaps the intention of the White House is to run the clock on the remainder of this administration’s term in office.”

But, he added, “I think there is a strong likelihood that eventually a compromise will be worked out which affords some review by the judiciary.”



Times staff writer Greg Miller contributed to this report.