Sunday, January 01, 2006

Justice Deputy Resisted Parts of Spy Program

Looks like 2006 is starting out with a major bang! This is from the New York Times:

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.

So Comey, who was then acting attorney general since Ashcroft was in the hospital, was unwilling to sign off on the White House's order to allow the NSA to domestically wiretap American citizens. Because of Comey's refusal, both Card and Gonzales make a personal visit to Ashcroft's hospital bed, to get Ashcroft to sign the order. But wait, it gets better:

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.

It looks like Ashcroft was also reluctant to give his authorization to the NSA wiretaps. Did the President Bush pressure Ashcroft to sign off on the wiretaps? Or did the White House continue on with the NSA wiretaps without Ashcroft's, and the Justice Deptartments approval?

This is potential bombshell. The question here is how much of this NSA spy program was placed under the Justice Department's review for the legality of the program, and how much of it was still considered "Classified?" The Times story does say 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.

But here's the problem with this review. The NSA spying program was considered so secret, that several top officials of the Justice Department were not aware of all aspects of the program, or refused to have any part in the program:

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.

In the end, you have to wonder how much of this revamped NSA spying program was considered legal? The NSA had final say on whether to get approval from the Justice Department, on who to spy on. The decision of who specifically to spy on, was given to NSA shift supervisors--without requesting any court orders. And at the beginning of this NSA apying program, the White House refused to even allow deputy attorney general Thompson access to the program. The White House started this program by not only circumventing the FISA courts, but also circumventing their own Justice Department.


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