By Michael A. Fletcher
Washington Post Staff Writer
Thursday, June 28, 2007
A Senate committee investigating the National Security Agency's warrantless wiretapping program issued subpoenas yesterday ordering the White House to turn over documents related to the eavesdropping effort, escalating a legal showdown between Congress and the Bush administration.
The Judiciary Committee's subpoenas were delivered to the offices of President Bush, Vice President Cheney and the national security adviser and to the Justice Department. They demanded copies of internal documents about the program's legality and agreements with telecommunications companies that participated in the program.
Lawmakers said their aim is to understand and reconstruct the administration's internal debate about the program's legality, an aim White House officials have resisted.
"This committee has made no fewer than nine formal requests to the Department of Justice and to the White House, seeking information and documents about the authorization of and legal justification for this program," Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, wrote in letters delivered with the subpoenas. "All requests have been rebuffed."
The White House offered no word on whether it will turn over the documents by the July 18 deadline. "We're aware of the committee's action, and will respond appropriately," spokesman Tony Fratto said. "It's unfortunate that congressional Democrats continue to choose the route of confrontation."
Leahy also formally asked Attorney General Alberto R. Gonzales yesterday to investigate whether Brett M. Kavanaugh made false statements under oath last year, during his confirmation hearing for a seat on the U.S. Court of Appeals for the District of Columbia Circuit.
Kavanaugh, who was an associate counsel at the White House when legal arguments were raised to defend the administration's response to the Sept. 11, 2001, attacks, told the Judiciary Committee that he "was not involved and am not involved in the questions about the rules governing detention of combatants."
Leahy cited details from The Washington Post's series this week on Cheney's influence in the West Wing. Included was an anecdote about Kavanaugh's discussing a pending court challenge to the detention of a U.S. citizen accused of being a combatant, and whether Kavanaugh's legal mentor, Supreme Court Justice Anthony M. Kennedy, would uphold the constitutionality of the detention.
"I don't believe that he was truthful with us. . . . I don't think that the answers were truthful. And I'm just sending out the notice that, if answers are not truthful, we'll send it to the U.S. attorney and the attorney general and ask them what's going on," Leahy said.
Kavanaugh, reached last night, declined to comment. A Court of Appeals spokesperson for Kavanaugh said in a statement that "Judge Kavanaugh's testimony was accurate."
The subpoenas and Leahy's criminal referral come two weeks after other congressional panels subpoenaed two former White House aides in connection with the Justice Department's firing of nine U.S. attorneys. The subpoenas -- which are likely to be resolved in court -- are a clear sign of the Democrats' willingness to pursue protracted litigation as they conduct aggressive probes of administration policies.
Bush secretly launched the eavesdropping program after the Sept. 11 attacks. According to Bush's eventual public description, the program allowed monitoring without a warrant of telephone calls, e-mails and other communication into or out of the Unitd States when one of the parties was suspected of terrorist ties.
The existence of the classified program was revealed in media reports in December 2005, angering lawmakers who called the program an infringement of civil liberties. The Bush administration has defended it as crucial to protecting the nation from further attacks.
Congressional interest in the program was stoked by testimony last month by former deputy attorney general James B. Comey that in 2004, Gonzales, then White House counsel, tried to pressure then-Attorney General John D. Ashcroft to recertify a controversial part of the program while Ashcroft was recovering from gallbladder surgery.
Ashcroft refused to abandon his objections, which have not been disclosed, and the White House initially recertified the part of the program at issue without obtaining a routine affirmation of its legality from the Justice Department. Bush backed down, however, when Ashcroft, Comey and other Justice officials threatened to resign, and some changes were made to obtain the Justice Department's approval.
"After we learned from Jim Comey about the late-night hospital visit to John Ashcroft's bedside, it was even more imperative that we find out the who, what, how and why surrounding the wiretapping of Americans without warrants," said Sen. Charles E. Schumer (D-N.Y.).
The Judiciary Committee, seeming frustrated by what Leahy called "stonewalling" of its requests for information, approved the subpoenas last week. Three Republicans joined Democrats in the 13 to 3 vote to authorize the subpoenas.
"The bipartisan support for issuing these subpoenas demonstrates that both Democrats and Republicans are fed up with the misleading statements from the attorney general and the administration about this illegal program," said Sen. Russell Feingold (D-Wis.), a member of the committee.
In January, Bush announced that the original eavesdropping program would in the future be supervised by a special intelligence court. An administration proposal to overhaul the Foreign Intelligence Surveillance Act is pending in Congress.
Civil libertarians applauded the committee's action. "It is really time that Congress starts getting to the bottom of the administration's illegal spying program," said Caroline Fredrickson, director of the Washington legislative office for the American Civil Liberties Union.
Washingtonpost.com staff writer Paul Kane contributed to this report.