2003 Draft Legislation Covered Eavesdropping

By Dan Eggen
Washington Post Staff Writer
Saturday, January 28, 2006

Legislation drafted by Justice Department lawyers in 2003 to strengthen the USA Patriot Act would have provided legal backing for several aspects of the administration's warrantless eavesdropping program. But officials said yesterday that was not the intent.

Most lawmakers and the public were not aware at the time that President Bush had already issued a secret order allowing the National Security Agency to intercept international calls involving U.S. citizens and legal residents.

Some critics of the NSA program said the draft legislation raises questions about recent administration claims that Bush had clear legal authority to order warrantless domestic spying in late 2001 and had no need to go to Congress for explicit approval.

"It's rather damning to their current view that they didn't need legislation," said Timothy H. Edgar, a national security lawyer at the American Civil Liberties Union. "Clearly the lawyers at the Justice Department, or some of them, felt that legislation was needed to allow the government to do what it was doing."

But the Justice Department said that the measures were not drafted to help the NSA effort.

"These proposals were drafted by junior staffers and never formally presented to the attorney general or the White House," said department spokeswoman Tasia Scolinos. "They were not drafted with the NSA program in mind."

The Domestic Security Enhancement Act of 2003 -- dubbed "Patriot II" by critics -- was leaked to the media in February 2003 and soon abandoned by Justice officials, who characterized it at the time as an "early draft" written by staff lawyers. The proposal included several provisions that, in retrospect, would have affected the NSA's program of monitoring telephone calls and e-mails, which was disclosed last month in press reports.

One provision would have made it clear that the president could order wiretapping without court supervision for 15 days after Congress approved the use of military force, as it did against al Qaeda. Current law allows such spying for 15 days without a judge's approval only when Congress issues a declaration of war.

Justice officials have argued more recently that the two types of declarations are legally equivalent.

Another section of the 2003 proposal would have made it easier for the NSA to obtain lists of telephone calls placed or received by U.S. citizens and residents.

A third provision would have created a "statutory defense" for agents who conducted surveillance under "lawful authorization" from the president or attorney general, meaning they could not be prosecuted for violating federal law, according to the draft. The Foreign Intelligence Surveillance Act (FISA), which governs domestic spying, provides such a defense only if the surveillance was approved by a secret intelligence court established by that law.

Some legal experts who question the president's authority to order warrantless eavesdropping said the latter proposal could be used to justify the legality of the entire NSA program, because it refers to surveillance activity ordered by the president or attorney general and not overseen by either the FISA or criminal courts.

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