2003 Draft Legislation Covered Eavesdropping

"It would have done it through the back door and in such a way that it would have been unlikely that Congress would have picked up on what was meant," said Kate Martin, director of the Center for National Security Studies, a civil liberties advocacy group in Washington.

Attorney General Alberto R. Gonzales said last month that the administration had considered seeking legislation authorizing the NSA program but had determined it would be impossible and could expose the highly classified program to the public. Scolinos said Gonzales was not referring to the 2003 draft proposals, which she characterized as a compendium of ideas compiled by staff lawyers.

"It is common when drafting any new policy to debate various ideas and proposals," she said.

Officials have said the NSA program was known only to a relatively small group of senior officials at Justice, including then-Attorney General John D. Ashcroft and his deputies.

In Senate testimony in March 2003, Ashcroft said some proposals for legislation strengthening the Patriot Act were under consideration but nothing formal had been drafted.

Many legal scholars and lawmakers have said Bush's NSA order may violate either FISA or the Constitution. An analysis by the nonpartisan Congressional Research Service also concluded that the warrantless surveillance effort directly conflicts with Congress's intentions in passing the FISA law in 1978 and said other legal justifications were "not as well grounded" as the administration asserts.

The Justice Department and Gonzales have responded with a variety of statements and documents aimed at bolstering the administration's legal arguments in the weeks leading up to Feb. 6, when the Senate Judiciary Committee has scheduled a hearing on the program. Committee Democrats sent a letter to Gonzales yesterday requesting documents related to electronic surveillance policies and the congressional authorization of force against al Qaeda.

Also yesterday, the Justice Department released a list of defenses of the "NSA terrorist surveillance program" under the heading "myth vs. reality," reiterating arguments that the effort is legal, is "narrowly focused" and follows in a tradition of warrantless eavesdropping during wartime.

The document also repeats recent claims by Gonzales and others that the FISA law is too cumbersome for use in rapidly intercepting overseas telephone calls, although it says the process is fine for purely domestic communications.