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Ashcroft's Deputy Resisted Parts of Spy Program

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  • Greg Cannon
    http://www.nytimes.com/2006/01/01/politics/01spy.html?th&emc=th Justice Deputy Resisted Parts of Spy Program By ERIC LICHTBLAU and JAMES RISEN Published:
    Message 1 of 1 , Jan 1, 2006
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      Justice Deputy Resisted Parts of Spy Program

      Published: January 1, 2006

      WASHINGTON, Dec. 31 - A top Justice Department
      official objected in 2004 to aspects of the National
      Security Agency's domestic surveillance program and
      refused to sign on to its continued use amid concerns
      about its legality and oversight, according to
      officials with knowledge of the tense internal debate.
      The concerns appear to have played a part in the
      temporary suspension of the secret program.

      The concerns prompted two of President Bush's most
      senior aides - Andrew H. Card Jr., his chief of staff,
      and Alberto R. Gonzales, then White House counsel and
      now attorney general - to make an emergency visit to a
      Washington hospital in March 2004 to discuss the
      program's future and try to win the needed approval
      from Attorney General John Ashcroft, who was
      hospitalized for gallbladder surgery, the officials

      The unusual meeting was prompted because Mr.
      Ashcroft's top deputy, James B. Comey, who was acting
      as attorney general in his absence, had indicated he
      was unwilling to give his approval to certifying
      central aspects of the program, as required under the
      White House procedures set up to oversee it.

      With Mr. Comey unwilling to sign off on the program,
      the White House went to Mr. Ashcroft - who had been in
      the intensive care unit at George Washington
      University Hospital with pancreatitis and was housed
      under unusually tight security - because "they needed
      him for certification," according to an official
      briefed on the episode. The official, like others who
      discussed the issue, spoke on the condition of
      anonymity because of the classified nature of the

      Mr. Comey declined to comment, and Mr. Gonzales could
      not be reached.

      Accounts differed as to exactly what was said at the
      hospital meeting between Mr. Ashcroft and the White
      House advisers. But some officials said that Mr.
      Ashcroft, like his deputy, appeared reluctant to give
      Mr. Card and Mr. Gonzales his authorization to
      continue with aspects of the program in light of
      concerns among some senior government officials about
      whether the proper oversight was in place at the
      security agency and whether the president had the
      legal and constitutional authority to conduct such an

      It is unclear whether the White House ultimately
      persuaded Mr. Ashcroft to give his approval to the
      program after the meeting or moved ahead without it.

      The White House and Mr. Ashcroft, through a
      spokeswoman, declined to comment Saturday on the
      hospital meeting. A White House spokeswoman, Jeannie
      Mamo, said she could not discuss any aspect of the
      meeting or the internal debate surrounding it, but
      said: "As the president has stated, the intelligence
      activities that have been under way to prevent future
      terrorist attacks have been approved at the highest
      levels of the Justice Department."

      The domestic eavesdropping program was publicly
      disclosed in mid-December by The New York Times.
      President Bush, in acknowledging the existence of the
      program in a televised appearance two weeks ago, said
      that tight controls had been imposed over the
      surveillance operation and that the program was
      reviewed every 45 days by top government officials,
      including at the Justice Department.

      "The review includes approval by our nation's top
      legal officials, including the attorney general and
      the counsel to the president," Mr. Bush said, adding
      that he had personally reauthorized the program's use
      more than 30 times since it began. He gave no
      indication of any internal dissent over the

      Questions about the surveillance operation are likely
      to be central to a Congressional hearing planned by
      Senator Arlen Specter, the Pennsylvania Republican who
      heads the Judiciary Committee. Mr. Specter, like some
      other Republicans and many Democrats in Congress, has
      voiced deep concerns about the program and Mr. Bush's
      legal authority to bypass the courts to order domestic
      wiretaps without warrants.

      What is known is that in early 2004, about the time of
      the hospital visit, the White House suspended parts of
      the program for several months and moved ahead with
      more stringent requirements on the security agency on
      how the program was used, in part to guard against

      The concerns within the Justice Department appear to
      have led, at least in part, to the decision to suspend
      and revamp the program, officials said. The Justice
      Department then oversaw a secret audit of the
      surveillance program.

      The audit examined a selection of cases to see how the
      security agency was running the program. Among other
      things, it looked at how agency officials went about
      determining that they had probable cause to believe
      that people in the United States, including American
      citizens, had sufficient ties to Al Qaeda to justify
      eavesdropping on their phone calls and e-mail messages
      without a court warrant. That review is not known to
      have found any instances of abuses.

      The warrantless domestic eavesdropping program was
      first authorized by President Bush in the months after
      the Sept. 11, 2001, attacks, officials said.
      Initially, it was focused on communications into and
      out of Afghanistan, including calls between
      Afghanistan and the United States, people familiar
      with the operation said. But the program quickly

      Several senior government officials have said that
      when the special operation first began, there were few
      controls on it. Some agency officials wanted nothing
      to do with it, apparently fearful of participating in
      an illegal operation, officials have said.

      At its outset in 2002, the surveillance operation was
      so highly classified that even Larry Thompson, the
      deputy attorney general to Mr. Ashcroft, who was
      active in most of the government's most classified
      counterterrorism operations, was not given access to
      the program.

      That led to uncertainties about the chain of command
      in overseeing law enforcement activities connected to
      the program, officials said, and it appears to have
      spurred concerns within the Justice Department over
      its use. Mr. Thompson's successor, Mr. Comey, was
      eventually authorized to take part in the program and
      to review intelligence material that grew out of it,
      and officials said he played a part in overseeing the
      reforms that were put in place in 2004.

      But even after the imposition of the new restrictions
      last year, the agency maintained the authority to
      choose its eavesdropping targets and did not have to
      get specific approval from the Justice Department or
      other Bush officials before it began surveillance on
      phone calls or e-mail messages. The decision on
      whether someone is believed to be linked to Al Qaeda
      and should be monitored is left to a shift supervisor
      at the agency, the White House has said.

      The White House has vigorously defended the legality
      and value of the domestic surveillance program, saying
      it has saved many American lives by allowing the
      government to respond more quickly and flexibly to
      threats. The Justice Department, meanwhile, said
      Friday that it had opened a criminal investigation
      into the unauthorized disclosure of the existence of
      the program.
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