http://www.nytimes.com/2006/01/01/politics/01spy.html?pagewanted=print&oref=login
The New York Times
January 1, 2006
By ERIC LICHTBLAU and JAMES RISEN
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.
Copyright 2006The New York Times Company
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