Subpoenas target administration's wiretapping program

The Senate Judiciary Committee wants the legal justification for the contentious antiterror effort.

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Congress is taking its most aggressive measures to date to shed light on the legality of the Bush administration's warrantless wiretapping policy, one of its most controversial efforts in its battle against terrorism.

The Senate Judiciary Committee subpoenaed the White House, Vice President Dick Cheney's office, the Justice Department, and the National Security Council (NSC) on Wednesday, giving the administration until July 18 to turn over documents relating to the surveillance program. Over the past 18 months, the administration has ignored at least nine requests for these documents, says Judiciary Committee Chairman Sen. Patrick Leahy (D) of Vermont.

Senator Leahy said that the committee's attempts to gather information on the surveillance program have been met with a "consistent pattern of evasion and misdirection." The New York Times first exposed the program in December 2005 and now reports that this is the most assertive attempt to investigate it since the Democrats won control of Congress this year.

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"It's unacceptable," Mr. Leahy said. "It is stonewalling of the worst kind."

The White House, the vice president's office and the Justice Department declined Wednesday to say how they would respond to the subpoenas.

"We're aware of the committee's action and will respond appropriately," said Tony Fratto, White House deputy press secretary.

"It's unfortunate that Congressional Democrats continue to choose the route of confrontation," Mr. Fratto added.

The Boston Globe reports, however, that the decision to issue subpoenas received substantial bipartisan support.

[O]nly three of the nine Republicans on the committee voted against authorizing the subpoenas, which were approved by a 13-to-3 vote. The committee, under both Republican and Democratic leadership, has been seeking information about the program and questioning its legality since The New York Times revealed its existence in December 2005.

Legal experts anticipate that the Bush administration will either "fight or ignore" the subpoenas, a choice that could take the issue to the Supreme Court, reports the Los Angeles Times. There also remains the possibility of an out-of-court settlement, in which lawmakers would receive at least some information about the legality of the wiretapping program.

Leahy noted that the Judiciary Committee was not seeking operational details of the program, which remains highly classified. But he said the committee was charged with oversight of the executive branch in the areas of constitutional protections and the civil liberties of Americans.

"The warrantless electronic surveillance program directly impacts those responsibilities," Leahy wrote. "We cannot conduct this oversight without knowing the legal arguments the Administration has used to justify interception of the communications of Americans without a warrant."

The surveillance program started shortly after the Sept. 11 attacks, reports the BBC. It was created to enable the US government to monitor the overseas e-mail and telephone communications of those with suspected terrorist ties – a step that the administration said was essential to security. Several private telephone and Internet service companies allegedly supported the NSC throughout their wiretapping operations.

While the president says his wartime powers allowed him to authorise surveillance without the need for a warrant, critics say he violated Americans' civil liberties.

To carry out the program, the administration has suggested revisions for a 1978 law regarding electronic surveillance, reports Congressional Quarterly.

The administration has proposed several changes to a 1978 law (PL 95-511) governing electronic surveillance for counterintelligence and counterterrorism purposes outside of criminal statutes. Among them is a liability shield for companies that cooperated with the government on its surveillance programs after the Sept. 11, 2001, attacks. Telecommunications companies have already been targeted in lawsuits for their alleged role in the surveillance.

In January, the Justice Department announced that the administration had secured the approval of the secret Foreign Intelligence Surveillance Court established under the 1978 law for certain counterterrorism electronic surveillance. Leahy has subpoenaed "orders, decisions or opinions" of that court related to the surveillance. The committee also is seeking documents related to President Bush's periodic reauthorization of the program.

Former Deputy Attorney General James B. Comey's dramatic testimony last month has been a driving force behind the subpoenas, reports The Washington Post. Mr. Comey recounted an argument he'd heard between then-Attorney General John Ashcroft and then-White House counsel Alberto Gonzales while Ashcroft was hospitalized. Gonzales allegedly wanted Ashcroft to recertify a controversial part of the program.

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 Independent in Britain reports that the ensuing legal drama may particularly damage Vice President Dick Cheney.

There is a storm gathering over Mr Cheney in particular, with increasingly vocal demands for his impeachment for "political crimes against the nation".

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An increasingly aggressive Congress is now focused on Mr Cheney. He is identified as the driving influence over President Bush in America's war on terror -- blamed for allowing the US military to torture terror suspects in their custody and for sweeping away a longstanding ban on assassinations.

In what may perhaps serve as an indicator of the administration's pending response to the subpoena, on Thursday President Bush exercised his executive privilege and rejected another subpoena from the Judiciary Committee demanding documents about the firing of federal prosecutors, reports The Associated Press.

Thursday was the deadline for surrendering the documents. The White House also made clear that (former presidential counsel Harriet) Miers and (former political director Sara) Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.

"Increasingly, the president and vice president feel they are above the law," said Senate Judiciary Chairman Patrick Leahy, D-Vt. He portrayed the president's actions as "Nixonian stonewalling."

The Denver Post's cartoonist editorialized on Cheney's position, commenting on his relationship to the nation's checks and balances.

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