By Dan Eggen and Walter Pincus
Washington Post Staff Writers
Thursday, March 9, 2006
A former senior national security lawyer at the Justice Department is highly critical of some of the Bush administration's key legal justifications for warrantless spying, saying that many of the government's arguments are weak and unlikely to be endorsed by the courts, according to documents released yesterday.
David S. Kris, a former associate deputy attorney general who now works at Time Warner Inc., concludes that a National Security Agency domestic spying program is clearly covered by a 1978 law governing clandestine surveillance, according to a legal analysis and e-mails sent to current Justice officials.
Kris, who oversaw national security issues at Justice from 2000 until he left the department in 2003, also wrote that the Bush administration's contention that Congress had authorized the NSA program by approving the use of force against al-Qaeda was a "weak justification" unlikely to be supported by the courts.
The criticism represents an unusual public dissent by a former administration official over the legality of the domestic spying program, which allows the NSA to intercept international communications involving U.S. citizens and residents without warrants. The program, approved by President Bush in October 2001, was first revealed publicly in media reports in December and has been the focus of furious political battles since then.
Kris's views are contained both in a 23-page legal analysis that he provided yesterday to journalists and in a series of e-mails that he sent in December to Courtney Elwood, an associate counsel to Attorney General Alberto R. Gonzales. The e-mails were released yesterday by the Electronic Privacy Information Center, which obtained them as part of ongoing Freedom of Information Act litigation.
Justice Department spokesman Brian Roehrkasse played down the importance of Kris's opinions last night, saying that "it is not new that there are some who have disagreed with this analysis."
"Numerous lawyers with knowledge of the terrorist surveillance program have concluded that the program is being conducted in accordance with the law," Roehrkasse said.
Kris acknowledged in his paper that many facts about the program are not known, suggesting that he was not briefed on the NSA program despite his senior position at Justice during the first two years of its existence. But he says that many of the key arguments made by the Justice Department in favor of the program's legality do not hold up under scrutiny.
"In sum, I do not believe the statutory law will bear the government's weight," Kris wrote in his paper, dated Jan. 25. ". . . I do not think Congress can be said to have authorized the NSA surveillance."
Kris refrains from passing final judgment on the government's constitutional argument, however, saying that more facts need to be known to reach a conclusion. The Justice Department says in its own "white paper" that the Foreign Intelligence Surveillance Act, which governs clandestine surveillance within the United States, must be unconstitutional if it conflicts with the president's inherent authority during war.
Also yesterday, the Bush administration said that it will provide a briefing on the NSA program to a new subcommittee of the Senate intelligence committee but that details of how the new panel will conduct any further oversight have yet to be worked out.
Creation of the seven-member subcommittee is part of a plan by Sen. Pat Roberts (R-Kan.), committee chairman, that helped persuade Republicans this week to reject proposals for a Senate panel investigation of the NSA program.
White House spokeswoman Dana Perino said the new subcommittee will receive the same briefing the administration has provided in the past to the "gang of eight" congressional leaders, though the new group will not be allowed to share what it learns with other members of Congress.
Roberts and other Republicans on the committee also have endorsed a legislative proposal by Sen. Mike DeWine (R-Ohio) that would provide a statutory basis for the NSA program. It would permit warrantless surveillance of calls between the United States and another country for 45 days, after which the government could cease the eavesdropping, seek a warrant, or explain to Congress why it wants to continue without a warrant.
Perino said yesterday that White House officials are "supportive of the approach but need to work on the details" of the proposal.
The panel's vice chairman, Sen. John D. Rockefeller IV (D-W.Va.), said yesterday in an interview that the proposals fall far short of allowing Congress to make judgments necessary to oversee the program. "It is 'undersight' when they tell us what they want us to know," Rockefeller said, referring to the White House. "It's 'oversight' when we know enough to ask our own questions."