White House Rejects Senators’ Request for Spying Documents

By Eric Lichtblau

The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President George W. Bush’s domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and congressional officials said.

The Justice Department is balking at the request, administration officials said Wednesday, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense in several public settings.

But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how the administration’s legal thinking on the surveillance program evolved and whether lawyers within the department saw any concrete limits to the president’s powers in fighting terrorism.

With the committee scheduled to hold the first public hearing on the eavesdropping program Monday, the Justice Department’s stance could provoke another clash between Congress and the executive branch over access to sensitive internal documents. The White House has recently rejected requests from Democrats for internal documents on Hurricane Katrina, as well as photos and other material related to White House visits by the lobbyist Jack Abramoff.

Several Democrats and at least one Republican have pressed the Justice Department in recent days to give them access, even in a closed setting, to the internal documents that formed the legal foundation of the surveillance program. But when asked whether the classified legal opinions would be made available to Congress, a senior Justice Department official said Wednesday, “I don’t think they’re coming out.”

The official said the administration’s legal arguments had already been aired, most prominently in a 42-page “white paper” issued last month. “Everything that’s in those memos was in the white paper,” the official said. The official and other administration and congressional officials were granted anonymity because the subject involved classified material.

While the administration has spent much of the last two weeks defending the legality and necessity of the surveillance program, the Judiciary Committee session will mark the first congressional hearing on the subject.

Senator Arlen Specter, Republican of Pennsylvania, who leads the panel, said in an interview Wednesday that he had “a lot of questions” that the administration had not yet adequately answered about the program’s legal rationale.

Several Democrats on the panel have formally requested the documents.

Specter said that he wanted a fuller explanation as to how the Justice Department asserts that the eavesdropping operation does not conflict with the 1978 Foreign Intelligence Surveillance Act, or FISA, which set strict and “exclusive” guidelines for intelligence wiretaps.

The operation, which was approved by Bush, allows the National Security Agency to conduct wiretaps on Americans’ international communications without court warrants. Specter said his view was that the operation “violates FISA there’s no doubt about that.”

He also questioned why the administration did not go back to Congress or the intelligence court before moving ahead on its own with the classified program after the attacks on Sept. 11, 2001.

Representative Jane Harman, Democrat of California, who was one of the few members of Congress briefed on the operation by the administration, echoed that theme in a letter sent Wednesday to Bush. She said in the letter that with changes made to the foreign intelligence law after Sept. 11, the eavesdropping operations of the NSA “can and should” be covered by court-approved warrants, “without circumventing” the process.

Attorney General Alberto Gonzales is scheduled to testify. His aides said he had confidence about the program’s legal footing, based on both the president’s inherent constitutional authority and a congressional authorization after Sept. 11 to use military force against terrorists. But both Republicans and Democrats said Wednesday that they planned to question Gonzales aggressively about those assertions.

The first Justice Department opinion justifying the program is thought to have been written in late 2001 or early 2002 by John Yoo, a proponent of expanded presidential powers in wartime. The second opinion, officials said, was drafted by Jack Goldsmith and came in 2004 at a time when some senior officials at the Justice Department voiced concerns about the program’s legal foundation and refused to sign off on its reauthorization. Those concerns led in part to the suspension of the program for several months and also appear to have led Goldsmith and other Justice Department lawyers to revisit the question of its legal underpinnings.