Justice Dept. probing domestic spying leak
By TONI LOCY, Associated Press Writer

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Last Updated 4:57 pm PST Friday, December 30, 2005
WASHINGTON (AP) - The Justice Department has opened another investigation into leaks of classified information, this time to determine who divulged the existence of President Bush's secret domestic spying program.
The inquiry focuses on disclosures to The New York Times about warrantless surveillance conducted by the National Security Agency since the Sept. 11 terrorist attacks, officials said.

The newspaper recently revealed the existence of the program in a front-page story that also acknowledged that the news had been withheld from publication for a year, partly at the request of the administration and partly because the newspaper wanted more time to confirm various aspects of the program.

White House spokesman Trent Duffy said Justice undertook the action on its own, and Bush was informed of it Friday.

"The leaking of classified information is a serious issue. The fact is that al-Qaida's playbook is not printed on Page One and when America's is, it has serious ramifications," Duffy told reporters in Crawford, Texas, where Bush was spending the holidays.

Catherine Mathis, a spokeswoman for the Times, declined to comment.

Disclosure of the secret spying program two weeks ago unleashed a firestorm of criticism of the administration. Some critics accused the president of breaking the law by authorizing intercepts of conversations - without prior court approval or oversight - of people inside the United States and abroad who had suspected ties to al-Qaida or its affiliates.

Bush, who publicly acknowledged the program's existence and described how it operates, has argued that the initiative is legal in a time of war.

The inquiry launched Friday is only the most recent effort by the Bush administration to determine who is disclosing information to journalists.

Two years ago, a special counsel was named to investigate who inside the White House gave reporters the identity of CIA operative Valerie Plame, an effort that led to perjury and obstruction of justice charges against Vice President Dick Cheney's top aide, Lewis I. "Scooter" Libby.

More recently, the Justice Department has begun examining whether classified information was illegally disclosed to The Washington Post about a network of secret CIA prisons in Eastern Europe and elsewhere.

The NSA leak probe was launched after the Justice Department received a request from the spy agency.

It is unclear whether Attorney General Alberto Gonzales will recuse himself from the inquiry. He was White House counsel when Bush signed the executive order authorizing the NSA, which is normally confined to overseas operations, to spy on conversations taking place on American soil.

For the past two weeks, Gonzales also has been one of the administration's point men in arguing that the president has the constitutional authority to conduct the spying.

"It's pretty stunning that, rather than focus on whether the president broke his oath of office and broke federal law, they are going after the whistleblowers," said Anthony D. Romero, executive director of the American Civil Liberties Union.

Romero said a special prosecutor from outside the Justice Department needs to be appointed. "This confirms many of the fears about Gonzales' appointment - that he would not be sufficiently independent from the president and that he would play the role of a crony," he said.

Duke University law professor Scott Silliman agreed that the Justice Department is taking the wrong approach.

"Somebody in the government has enough concern about this program that they are talking to reporters," Silliman said. "I don't think that is something the Justice Department should try to prosecute."

Douglas Kmiec, a Pepperdine University law professor, said the Justice probe is the next logical step because the NSA is alleging a violation of a law that prohibits disclosure of classified information.

"The Department of Justice has the general obligation to investigate suspected violations of the law," Kmiec said. "It would be extraordinary for the department not to take up this matter."

The NSA probe likely will result in a repeat of last summer's events in Washington, where reporters were subpoenaed to testify about who in the administration told them about Plame's work at the CIA. New York Times reporter Judith Miller spent 85 days in jail for refusing to reveal her sources.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the Plame investigation was about "political gamesmanship." But, she said, the NSA leak probe is frightening.

"In this case, there is no question that the public needed to know what the New York Times reported," she said. "It's much more of a classic whistleblower situation. The public needs to know when the government is engaged in things that may well be unconstitutional."

The surveillance program bypassed a nearly 30-year-old secret court established to oversee highly sensitive investigations involving espionage and terrorism.

Administration officials insisted that Bush has the power to conduct warrantless surveillance under the Constitution's war powers provision. They argued that Congress also gave Bush the power when it authorized the use of military force against terrorists in a resolution adopted within days of the Sept. 11 attacks.

But not everyone agreed:

January 1, 2006
Justice Deputy Resisted Parts of Spy Program
By ERIC LICHTBLAU and JAMES RISEN, NY TIMES

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WASHINGTON, Dec. 31 - A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.

The concerns prompted two of President Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general - to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.

The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.

With Mr. Comey unwilling to sign off on the program, the White House went to Mr. Ashcroft - who had been in the intensive care unit at George Washington University Hospital with pancreatitis and was housed under unusually tight security - because "they needed him for certification," according to an official briefed on the episode. The official, like others who discussed the issue, spoke on the condition of anonymity because of the classified nature of the program.

Mr. Comey declined to comment, and Mr. Gonzales could not be reached.

Accounts differed as to exactly what was said at the hospital meeting between Mr. Ashcroft and the White House advisers. But some officials said that Mr. Ashcroft, like his deputy, appeared reluctant to give Mr. Card and Mr. Gonzales his authorization to continue with aspects of the program in light of concerns among some senior government officials about whether the proper oversight was in place at the security agency and whether the president had the legal and constitutional authority to conduct such an operation.

It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it.

The White House and Mr. Ashcroft, through a spokeswoman, declined to comment Saturday on the hospital meeting. A White House spokeswoman, Jeannie Mamo, said she could not discuss any aspect of the meeting or the internal debate surrounding it, but said: "As the president has stated, the intelligence activities that have been under way to prevent future terrorist attacks have been approved at the highest levels of the Justice Department."

The domestic eavesdropping program was publicly disclosed in mid-December by The New York Times. President Bush, in acknowledging the existence of the program in a televised appearance two weeks ago, said that tight controls had been imposed over the surveillance operation and that the program was reviewed every 45 days by top government officials, including at the Justice Department.

"The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president," Mr. Bush said, adding that he had personally reauthorized the program's use more than 30 times since it began. He gave no indication of any internal dissent over the reauthorization.

Questions about the surveillance operation are likely to be central to a Congressional hearing planned by Senator Arlen Specter, the Pennsylvania Republican who heads the Judiciary Committee. Mr. Specter, like some other Republicans and many Democrats in Congress, has voiced deep concerns about the program and Mr. Bush's legal authority to bypass the courts to order domestic wiretaps without warrants.

What is known is that in early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.

The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program.

The audit examined a selection of cases to see how the security agency was running the program. Among other things, it looked at how agency officials went about determining that they had probable cause to believe that people in the United States, including American citizens, had sufficient ties to Al Qaeda to justify eavesdropping on their phone calls and e-mail messages without a court warrant. That review is not known to have found any instances of abuses.

The warrantless domestic eavesdropping program was first authorized by President Bush in the months after the Sept. 11, 2001, attacks, officials said. Initially, it was focused on communications into and out of Afghanistan, including calls between Afghanistan and the United States, people familiar with the operation said. But the program quickly expanded.

Several senior government officials have said that when the special operation first began, there were few controls on it. Some agency officials wanted nothing to do with it, apparently fearful of participating in an illegal operation, officials have said.

At its outset in 2002, the surveillance operation was so highly classified that even Larry Thompson, the deputy attorney general to Mr. Ashcroft, who was active in most of the government's most classified counterterrorism operations, was not given access to the program.

That led to uncertainties about the chain of command in overseeing law enforcement activities connected to the program, officials said, and it appears to have spurred concerns within the Justice Department over its use. Mr. Thompson's successor, Mr. Comey, was eventually authorized to take part in the program and to review intelligence material that grew out of it, and officials said he played a part in overseeing the reforms that were put in place in 2004.

But even after the imposition of the new restrictions last year, the agency maintained the authority to choose its eavesdropping targets and did not have to get specific approval from the Justice Department or other Bush officials before it began surveillance on phone calls or e-mail messages. The decision on whether someone is believed to be linked to Al Qaeda and should be monitored is left to a shift supervisor at the agency, the White House has said.

The White House has vigorously defended the legality and value of the domestic surveillance program, saying it has saved many American lives by allowing the government to respond more quickly and flexibly to threats. The Justice Department, meanwhile, said Friday that it had opened a criminal investigation into the unauthorized disclosure of the existence of the program.

Bush defends eavesdropping amid calls for testimony
Sun Jan 1, 2006 06:25 PM ET
By Tabassum Zakaria

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SAN ANTONIO, Texas (Reuters) - President George W. Bush defended domestic eavesdropping by the National Security Agency on Sunday after a newspaper report about a Justice Department official's resistance to the program prompted new calls for a Senate inquiry.

The New York Times reported on Sunday that James Comey, a deputy to then-Attorney General John Ashcroft, was concerned about the legality of the NSA program and refused to extend it in 2004. White House aides then turned to Ashcroft while the attorney general was hospitalized for gallbladder surgery, the Times said.

"This is a limited program designed to prevent attacks on the United States of America," Bush said after visiting wounded troops at Brooke Army Medical Center in San Antonio.

The NSA program "listens to a few numbers called from the outside of the United States and of known al Qaeda or affiliate people," he said.

"If somebody from al Qaeda is calling you, we'd like to know why," Bush said.

White House spokesman Trent Duffy later said that while the president focused on calls being made from abroad, the eavesdropping program was also conducted on communications originating from inside the United States.

"We're at war," Bush said. "I've got to use the resources at my disposal, within the law, to protect the American people. And that's what we're doing."

Democratic Sen. Charles Schumer of New York, a member of the Judiciary Committee, said he would ask committee Chairman Sen. Arlen Specter, a Pennsylvania Republican, to seek testimony from Comey, Ashcroft, Attorney General Alberto Gonzales and White House Chief of Staff Andrew Card.

"Today's revelations really heighten concerns about this," Schumer said on "Fox News Sunday."

LEGAL WRANGLE

The New York Times reported two weeks ago that Bush authorized the NSA to monitor, without court approval, the international telephone calls and e-mails of U.S. citizens suspected of links to foreign terrorists.

A 1978 law, the Foreign Intelligence Surveillance Act, makes it illegal to spy on U.S. citizens in the United States without the approval of a special court.

Schumer said if the president thought the law hampered the war on terrorism he should have asked Congress to consider making changes.

The Bush administration has argued the eavesdropping is legal and said congressional leaders were told of the program.

Bush said the program was being "constantly reviewed by people throughout my administration."

Republican Sen. Mitch McConnell of Kentucky said on "Fox News Sunday" that Congress should focus on investigating who in the U.S. government leaked the existence of the program to the Times.

The Senate Intelligence Committee, which usually meets in closed session, would be a better place than the judiciary panel to investigate the program, McConnell said.

According to the Times report, Comey's refusal to reauthorize the NSA program prompted Card and Gonzales to try to get approval from Ashcroft in March 2004 while he was in a Washington hospital for gallbladder surgery.

The Times said accounts of the hospital meeting differed, but that some officials said Ashcroft also appeared reluctant to give his authorization to continue with aspects of the program.

It was unclear if the White House persuaded Ashcroft to approve the program or proceeded without him, the Times said.

(Additional reporting by Eric Beech)


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