Justice Dept. Role in Eavesdropping Decision Under Review

By Dan Eggen
Washington Post Staff Writer
Thursday, February 16, 2006

The Justice Department's Office of Professional Responsibility has opened an internal investigation into the department's role in approving the Bush administration's warrantless domestic eavesdropping program, officials said yesterday.

In addition, Attorney General Alberto R. Gonzales signaled in an interview with The Washington Post yesterday that the administration will sharply limit the testimony of former attorney general John D. Ashcroft and former deputy attorney general James B. Comey, both of whom have been asked to appear before the Senate Judiciary Committee regarding the program.

"Clearly, there are privilege issues that have to be considered," Gonzales said. "As a general matter, we would not be disclosing internal deliberations, internal recommendations. That's not something we'd do as a general matter, whether or not you're a current member of the administration or a former member of the administration."

"You have to wonder what could Messrs. Comey and Ashcroft add to the discussion," Gonzales added.

In response to the comments last night, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said he has asked Gonzales for permission to call Ashcroft and Comey to testify but has not received an answer.

"I'm not asking about internal memoranda or any internal discussions or any of those kind of documents which would have a chilling effect," Specter said.

But he said he would expect Ashcroft and Comey to talk about the legal issues at play in the case, including debates within the administration that included a visit by high-level officials to Ashcroft while he was in a hospital bed in 2004.

The remarks are among the latest developments in the debate over the National Security Agency program, which was first revealed in media reports in December. President Bush and his aides have strongly defended the program as both lawful and necessary to track suspected al Qaeda associates, but many legal scholars and lawmakers on both sides of the aisle have raised doubts about the program's legality.

In a letter to Rep. Maurice D. Hinchey (D-N.Y.), Office of Professional Responsibility counsel H. Marshall Jarrett said that his office has "initiated an investigation" into the Justice Department's role in the NSA surveillance program. The letter, dated Feb. 2 but not received by Hinchey until yesterday, indicates that the probe will include "whether such activities are permissible under existing law."

But Justice Department spokeswoman Tasia Scolinos said the inquiry will be more limited: "They will not be making a determination on the lawfulness of the NSA program but rather will determine whether the department lawyers complied with their professional obligations in connection with that program."

Scolinos also said that "OPR routinely looks into issues of this kind."

Hinchey, who requested the investigation along with three other House Democrats, said he welcomes a probe into "how President Bush went about creating this Big Brother program."

Elsewhere in the Capitol yesterday, Democrats and Republicans skirmished on several fronts in the debate regarding proper congressional oversight of the program.

The House Judiciary Committee, voting largely along party lines, rejected a Democratic measure asking the attorney general to provide the legal opinions and other documents related to the surveillance program. Rep. John N. Hostettler (Ind.) was the only Republican who joined the panel's Democrats in supporting the proposal by Rep. John Conyers Jr. (D-Mich.).

The Senate intelligence committee is scheduled to vote today on a Democratic proposal to launch a congressional inquiry into the NSA program. One member, Sen. Mike DeWine (R-Ohio), opposes an investigation but wants legislation to exempt the surveillance program from the 1978 Foreign Intelligence Surveillance Act.

That idea got a thumbs-down yesterday from some prominent players, including Specter and Rep. Jane Harman (Calif.), the House intelligence committee's top Democrat. The surveillance law can be modified as needed, and remains the best vehicle for setting guidelines for government efforts to eavesdrop on phone calls and e-mails, Specter told reporters. But thus far, he said, "the administration will simply not comply with that statute."

Harman agreed that Congress can modify FISA or make other changes, such as appropriating more resources for the judges and aides handling requests for secret warrants, if the administration shows they are needed.

Staff writer Charles Babington contributed to this report.

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