[Infowarrior] - White House Kept Justice Lawyers in Dark on Warrantless Wiretapping

[Richard Forno]

White House Kept Justice Lawyers in Dark on Warrantless Wiretapping
By Carrie Johnson and Ellen Nakashima
Washington Post Staff Writer
Friday, July 10, 2009 4:00 PM

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/10/AR2009071002536_pf.html
The Bush White House so strictly controlled access to its warrantless  
eavesdropping program that only three Justice Department lawyers were  
aware of the plan, which nearly ignited mass resignations and a  
constitutional crisis when a wider circle of administration officials  
began to question its legality, according to a watchdog report  
released today.

The unclassified summary by five inspectors general from government  
intelligence agencies called the arrangements "extraordinary and  
inappropriate" and asserted that White House secrecy "undermined" the  
ability of the Justice Department to do its work.

The report is the first public sign of a long running investigative  
review of a program that provoked fierce conflict within the highest  
levels of the Bush administration in 2004. At the time, the Justice  
Department's second in command and the director of the FBI both vowed  
to resign if President Bush continued with electronic intelligence  
gathering that they believed was outside the boundaries of the law.

Today's report was mandated by Congress in legislation last year that  
updated the Foreign Intelligence Surveillance Act of 1978 to  
accommodate new technologies. The bulk of the review remains highly  
classified.

The program, which has been called the Terrorist Surveillance Program  
(TSP), is part of a broader intelligence effort known as the  
President's Surveillance Program, much of which is not known to the  
public. The TSP authorized the National Security Agency to intercept  
without court warrants international email messages and other  
communications believed to involve people with ties to al Qaeda.

The wiretapping program was brought under the oversight of the special  
Foreign Intelligence Surveillance court, which is based in the  
District, in early 2007, after the New York Times reported its  
existence and chronicled unrest within the Bush administration about  
its legality.

The inspectors general from the Departments of Justice and Defense, as  
well as the CIA, the NSA and the office of the Director of National  
Intelligence, said they reviewed thousands of documents and  
interviewed more than 200 people in connection with the report,  
including Bush era officials John Negroponte, who served as director  
of national intelligence, National Security Agency Director Michael V.  
Hayden, Secretary of Defense Donald Rumsfeld and Attorney General  
Alberto Gonzales.

But other key figures such as Bush White House Chief of Staff Andrew  
Card, former Attorney General John D. Ashcroft and former CIA director  
George Tenet declined interview requests, investigators said. The  
inspectors general lack the authority to compel them to talk.

President Bush authorized the program shortly after the Sept. 11,  
2001, terrorist attacks on American soil in a single document, and the  
legal approval for the initiative relied on ongoing threat assessments  
known among some members of the intelligence community as "scary  
memos," the report said.

The program eventually became a symbol of the administration's  
excessive secrecy on national security policies. Only three Justice  
Department officials -- Ashcroft, former Office of Legal Counsel  
lawyer John C. Yoo, and intelligence policy lawyer James Baker -- were  
read into the electronic surveillance initiative. Many of their  
superiors were kept in the dark, the unclassified summary reported for  
the first time today.

One former department lawyer, Jay S. Bybee, told investigators that he  
was Yoo's superior in the Office of Legal Counsel but was never read  
into the program and "could shed no further light" on how Yoo became  
the point man on memos that confirmed its legality. By following this  
route, the memos avoided a rigorous peer review process.

The report said Yoo prepared hypothetical documents in September and  
early October 2001 before writing a formal memo in November, after  
Bush had already authorized the initiative.

In that memo, Yoo concluded that the FISA law could not "restrict the  
president's ability to engage in warrantless searches that protect the  
national security" and that "unless Congress made a clear statement in  
FISA that it sought to restrict presidential authority to conduct  
warrantless searches in the national security area -- which it has  
not-- then the statute must be construed to avoid such a reading,"  
according to the report.

When that analysis reached higher level officials in the Justice  
Department in late 2003 and early 2004, they became troubled about the  
conclusions and convinced the plan may have run afoul of the law,  
ignoring important Supreme Court rulings on the subject of executive  
branch power.

The full outlines of the program remain murky and subject to strict  
classification, but the inspectors general report said that Yoo "did  
not accurately describe the scope" of other intelligence activities in  
the President's Surveillance Program, presenting "a serious impediment  
to recertification of the program."

Former Justice Department lawyers Patrick Philbin and Jack Goldsmith,  
who served in the Office of Legal Counsel, secured access to the  
program and began meeting with Gonzales, then the White House counsel,  
and David Addington, counsel to Vice President Cheney, to express  
their concerns after Yoo left the department in 2003. Goldsmith's  
notes from the meetings say that the White House lawyers agreed that  
they would "pull the plug" if the trouble with the program grew  
serious, the report said.

Disputes over the program prompted a series of meetings in March 2004,  
including lobbying by the White House, to try to persuade the Justice  
Department lawyers to agree to a temporary continuation of the  
surveillance while its legal problems were fixed.

On March 9, 2004, intelligence officials and Cheney met to discuss the  
issue without inviting Justice Department leaders. Cheney suggested  
that the president "may have to reauthorize without [the] blessing of  
DOJ," according to previously unreported notes taken by Mueller  
described in today's report. Mueller told the investigators he would  
have a problem with that approach.

Later that day, Cheney met with Justice Department officials and told  
them that "thousands" of lives could be risked if they did not agree  
to continue the program, the inspectors general report said.

The resignation threats came after a dramatic March 10, 2004, hospital  
visit by Card, who was then the White House chief of staff, and  
Gonzales to the bedside of an ailing Ashcroft. They appeared at the  
hospital in an ultimately unsuccessful bid to convince the attorney  
general, who was weakened by severe pancreatitis, to sign a document  
that would give reauthorize the program despite legal advice from  
others in the Justice Department.

Former Deputy Attorney General James B. Comey told the Senate years  
later that he had literally sprinted up the stairs of George  
Washington University Hospital in an effort to arrive before the White  
House advisers. Comey said the episode marked the "most difficult  
night of my professional life."

Several subordinates at the Justice Department and FBI Director Robert  
Mueller III stood behind Comey in the aftermath of the hospital  
confrontation, raising the possibility of a mass departure that would  
have attracted wide public attention and invited comparisons to the  
Nixon era's Saturday Night Massacre.

Senior White House officials disdained the legal regime imposed on the  
program, according to a book by Goldsmith. He reported that Addington  
said in February 2004 that "we're one bomb away from getting rid of  
that obnoxious [FISA] court."

Goldsmith also said that the information on the program had been so  
closely held that Addington denied a request by the National Security  
Agency's inspector general to see a copy of the Justice Department  
memo supporting the Terrorist Surveillance Program.

"The White House had found it much easier to go it alone, in secret,"  
Goldsmith wrote.