White House Refuses Senate Subpoena on NSA Docs
The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush’s domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday. The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.
But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in 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 on Monday, the Justice Department’s stance could provoke another clash between Congress and the executive branch over access to classified internal documents. The administration has already drawn fire from Democrats in the last week for refusing to release internal documents on Hurricane Katrina as well as material related to 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,” said the official, who, like other administration and Congressional officials, was granted anonymity because classified material was involved.
The administration’s position here is nonsensical. First, it doesn’t get to decide whether the documents add anything to the debate. Congress has every right to conduct oversight into the operations of the Justice Department and the NSA. Second, if all the information is already in the White Paper, why can’t the documents be turned over?
One would think an executive privilege claim would have more merit. Indeed, there is strong precedent for refusing to turn over internal decision memoranda on that grounds. But, “Nah, you don’t need to see these?”