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Senate Rejects Wiretapping Probe
But Judge Orders Justice Department to Turn Over Documents

By Charles Babington and Carol D. Leonnig
Washington Post Staff Writers
Friday, February 17, 2006

The Bush administration helped derail a Senate bid to investigate a warrantless eavesdropping program yesterday after signaling it would reject Congress's request to have former attorney general John D. Ashcroft and other officials testify about the program's legality. The actions underscored a dramatic and possibly permanent drop in momentum for a congressional inquiry, which had seemed likely two months ago.

Senate Democrats said the Republican-led Congress was abdicating its obligations to oversee a controversial program in which the National Security Agency has monitored perhaps thousands of phone calls and e-mails involving U.S. residents and foreign parties without obtaining warrants from a secret court that handles such matters.

"It is more than apparent to me that the White House has applied heavy pressure in recent days, in recent weeks, to prevent the committee from doing its job," Sen. John D. Rockefeller IV (D-W.Va.), vice chairman of the intelligence committee, said after the panel voted along party lines not to consider his motion for an investigation.

There was one setback, however, to the administration's efforts to keep tight wraps on the NSA operation. Yesterday, a federal judge ordered the Justice Department to turn over its internal documents and legal opinions about the program within 20 days -- or explain its reasons for refusing.

Before yesterday's closed-door meeting of the intelligence panel began, White House spokesman Scott McClellan said that the NSA program does not require "congressional authorization" but that the administration is "open to ideas regarding legislation." Committee sources said such comments -- characterized as meaningful by Republicans but empty by Democrats -- apparently persuaded GOP moderates to back away from earlier calls for a congressional investigation into the program.

After the meeting, Chairman Pat Roberts (R-Kan.) told reporters: "The administration is now committed to legislation and has agreed to brief more intelligence committee members on the nature of the surveillance program. The details of this agreement will take some time to work out."

Democrats said the administration's overture is so vague that it amounts to nothing, calling it a stalling tactic to give Republican lawmakers political cover for rejecting a full inquiry. "For the past three years, the Senate intelligence committee has avoided carrying out its oversight of our nation's intelligence programs whenever the White House becomes uncomfortable with the questions being asked," Rockefeller told reporters. "The very independence of this committee is called into question."

In December, two Republicans on the committee -- Olympia J. Snowe (Maine) and Chuck Hagel (Neb.) -- called for a congressional investigation of the NSA program. Yesterday, they supported the move that adjourned the meeting without voting on Rockefeller's motion.

Snowe said in a statement: "The administration must demonstrate its commitment to avoiding a constitutional deadlock by engaging in good-faith negotiations."

McClellan and Roberts cited efforts by committee member Mike DeWine (R-Ohio). DeWine, who will face a tough reelection battle this fall, is drafting legislation that would exempt the NSA program from the 1978 Foreign Intelligence Surveillance Act. The law provides a mechanism for secret warrants for wiretaps in anti-terrorism investigations. But several key Republicans, including House intelligence committee member Heather A. Wilson (N.M.) and Senate Judiciary Committee Chairman Arlen Specter (Pa.), say the NSA program should fall under FISA guidelines.

In the House, the intelligence committee will ask administration officials to explain the NSA program and its legal justifications in closed hearings over the next few months, said Wilson, one of its subcommittee chairmen.

The committee "has begun a process to thoroughly review this program and the FISA law" through a series of yet-to-be-scheduled briefings and exchanges of letters that will unfold as part of the panel's "regular order," Wilson said in an interview in her office. "This is the way we do oversight," she said, adding that she has discussed the matter with the committee chairman, Peter Hoekstra (R-Mich.).

Wilson indicated that the House hearings will not have the sharply investigative tone that Rockefeller sought in his motion, which would have required the administration to detail its reasons and rationale for starting the surveillance program in late 2001.

"Sometimes minority parties call for oversight" of government programs for strictly partisan reasons, said Wilson, who faces a potentially strong Democratic challenger this fall. "The intelligence committees in my view are an exception to that rule. This is not political theater. . . . We ask tough questions, and we expect straight answers."

Meanwhile yesterday on the Senate side, Specter released a day-old letter in which Assistant Attorney General William E. Moschella seemed to reject the senator's request for testimony from Ashcroft and former deputy attorney general James B. Comey. Comey had raised questions about the NSA program. Some senators want to know more about Ashcroft's response to Comey's concerns during a 2004 conversation with top administration officials while Ashcroft was hospitalized for pancreatitis.

"We do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information" to the Judiciary Committee, Moschella said in his letter Wednesday to Specter.

In a victory for three privacy advocacy groups seeking Justice Department records about the program, U.S. District Judge Henry H. Kennedy Jr. ruled yesterday that the department cannot decide on its own what documents it will provide, because news reports in December revealing the program's existence have created a substantial public dialogue about presidential powers and individual privacy rights. Kennedy rejected Justice's argument that, because so much of the surveillance program involves classified information, the agency alone can determine when it is feasible to review and possibly release documents.

"President Bush has invited meaningful debate about the warrantless surveillance program," Kennedy wrote, alluding to comments Bush has made at news conferences and speeches acknowledging public disagreement about domestic spying. "That can only occur if DOJ processes its requests in a timely fashion and releases the information sought."

Justice spokesman Brian Roehrkasse said the department "has been extremely forthcoming about documents and information about the legal authorities" for the surveillance program.

The American Civil Liberties Union, which had requested the records under the Freedom of Information Act along with the Electronic Privacy Information Center and the National Security Archive Fund, cheered the ruling.

Kennedy agreed with the three groups that the Justice Department's decision to set its own time frame "would give the agency unchecked power to drag its feet and 'pay lip service' " to the law requiring the release of public information.

Staff writer Dan Eggen contributed to this report.

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