Welcome to Gonzales Watch - Blawging the Ex-Attorney General

In the old days, having a “party line” meant that telephone customers shared the same network line for their calls. If someone picked up the phone when you were on a call with someone else, they could ‘join the party’ by eavesdropping in on your most intimate details, or joining the conversation.

Today, when somebody listens in on your phone call, there’s a whole new legal meaning associated with it. Now, unless the government has a warrant, it can’t eavesdrop on your phone calls.

At least that was the case until Sept. 11th came along.

Then President George W. Bush decided that it was O.K. to have a “terrorist surveillance program” to listen to conversations and open e-mails without first getting a judge to authorize a warrant.

When he was White House Counsel, Gonzales believed that this was a necessary legal Texas two-step dance around the Fourth Amendment and Supreme Court case law on searches and seizure.

Despite years of requests for more information about the program, the White House, Dick Cheney, and Department of Justice Lawyers haven’t been forthcoming about the legal rationale and due process considerations behind the decision to use warrantless wiretaps inside the U.S.

Now, the Senate Judiciary Committee concluded that its time to set things straight by issuing subpoenas for the DOJ, the White House, Cheney, and the National Security Council for documents about the surveillance program. Documents produced in response to the subpoenas are due on July 18, 2007.

This is bound it end up in federal court.

White House Counsel Fred Fielding and the lawyers working for him might have to make other plans this Jully 4th — their clients just got served with subpoenas demanding the production of documents and information about President Bush’s domestic eavesdropping and electronic surveillance program.

Dick Cheney received a subpoena.

An all-encompassing subpoena was served on the White house.

The National Security Council and Dept. of Justice received subpoenas.

And finally, U.S. Attorney General Alberto Gonzales got a nice letter from Chairman Leahy.

Here is the letter sent by the Senate Judiciary Committee today upon U.S. Attorney General Alberto Gonzales detailing why subpoenas where served on the White House and Vice-President Dick Cheney.

Chairman Leahy explains that the Committee is demanding documents relating to President Bush’s domestic warrantless electronic surveillance program, or what Bush termed the “Terrorist Surveillance Program.”

The Honorable Alberto Gonzales
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Dear Attorney General Gonzales:

For more than five years, the Bush Administration intercepted
conversations of Americans in the United States without warrants and
without following the procedures of the Foreign Intelligence
Surveillance Act (FISA). The President confirmed this fact soon after
it became public in December 2005. Since that time, the Senate
Judiciary Committee has conducted an inquiry into this warrantless
electronic surveillance. Over the past 18 months, 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. All requests
have been rebuffed. Our attempts to obtain information through
testimony of Administration witnesses have been met with a consistent
pattern of evasion and misdirection.

Therefore, attached is a subpoena for documents related to the
Committee’s inquiry into the program or programs of warrantless
electronic surveillance. The subpoena seeks, among other things,
documents related to authorization and reauthorization of that
surveillance; legal analysis or opinions about the surveillance; orders,
decisions, or opinions of the Foreign Intelligence Surveillance Court
(FISC) concerning the surveillance; agreements between the Executive
Branch and telecommunications or other companies regarding liability for
assisting with or participating in the surveillance; and documents
concerning the shutting down of an investigation of the Department of
Justice’s Office of Professional Responsibility (OPR) concerning the
surveillance.

This Committee’s inquiry into this warrantless electronic surveillance
is essential to the performance of its constitutional legislative and
oversight responsibilities. The Administration has asked Congress to
make sweeping changes to FISA - a crucial national security authority
over which the Judiciary Committee has jurisdiction. It is impossible
to make informed legislative decisions without understanding fully the
Administration’s interpretation of FISA and the perceived flaws in that
legislation that led the Administration to operate a program outside of
its provisions for more than five years. It is not enough to know the
Administration’s current legal justification for the surveillance. All
indications are that the legal analysis supporting this program of
warrantless surveillance, and perhaps the program itself, has changed
more than once since its inception; it could very well change again.
For the Congress to legislate effectively in this area it must have full
information about the Executive Branch’s interpretations of FISA and how
those interpretations have affected its enforcement of the Act.

The Administration’s FISA proposal also contains provisions that would
bring to an end lawsuits concerning participation of telecommunications
carriers and other companies in this program of warrantless
surveillance. This Committee cannot responsibly consider those
provisions without knowing what government officials and the companies
understood to be the legal basis for that participation at the time it
occurred. The Supreme Court has said that “[a] legislative body cannot
legislate wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or change,”
McGrain v. Dougherty, 273 U.S. 135, 175 (1927). The documents this
Committee seeks are just that sort of information and we cannot do our
job without them.

In addition, the Judiciary Committee is 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. 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. This Committee would be abdicating its responsibility if it
failed to examine Executive Branch actions simply because we are told
they have stopped. We have been given no assurance that these
activities, or similar ones, will not resume based on the same or
similar legal arguments. This Committee must conduct oversight to
consider whether it wishes to act, through legislation or otherwise, to
prevent such recurrence.

Oversight is also necessary to determine whether the Administration has
conducted itself appropriately in carrying out and defending this
warrantless surveillance. The testimony of former Deputy Attorney
General James Comey before this Committee raises serious questions about
the Administration’s commitment to the rule of law. He testified that
only the prospect of a mass resignation of virtually every senior
officer in the Department of Justice caused the President to address
serious Justice Department concerns about legality of the program. This
came after the program had already been operating for more than two
years. Later, when you were asked during testimony before this
Committee whether senior Justice Department officials expressed
reservations about the warrantless surveillance program, you responded
“I do not believe that these DOJ officials . . . had concerns about this
program.” That response, at the very least, calls into question your
candor with this Committee.

Finally, when the Department of Justice’s own Office of Professional
Responsibility (OPR) began an internal investigation into the role of
Department of Justice attorneys in the authorization and oversight of
the warrantless surveillance program, the Department of Justice and the
White House denied the investigators the clearances they needed, thereby
shutting the investigation down. The head of OPR has noted that in its
31-year history OPR has never before been prevented from pursuing an
investigation. This action, too, raises questions about the
Administration’s motives and behavior.

There is no legitimate argument for withholding the requested materials
from this Committee. The Administration cannot thwart the Congress’s
conduct of its constitutional duties with sweeping assertions of secrecy
and privilege. The Committee seeks no intimate operational facts and we
are willing to accommodate legitimate redactions of the documents we
seek to eliminate reference to these details. We ask that you segregate
any documents containing classified national security information and
deliver those separately to the Office of Senate Security in Room S-407
of the Capitol, where they will be maintained in compliance with all
security laws and regulations. Only Committee members and appropriately
cleared staff will be permitted to review them.

I continue to hope that the Department of Justice will cooperate with
the Committee’s investigation; this Committee remains willing to work to
with you and accommodate legitimate concerns in connection with your
compliance with this subpoena. I look forward to your compliance with
the Judiciary Committee’s subpoena by the return date of July 18, 2007.

Sincerely,

PATRICK LEAHY
Chairman

Here is the text of the subpoena of Vice-President Richad (’Dick’) Cheney issued today by the Senate Judiciary Committee. It is returnable July 18, 2007.

To David S. Addington or other Custodian of Records, Office of the Vice President, Greeting:

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED to appear before the Committee on the Judiciary of the Senate of the United States, on July 18, 2007, at 2:00 o’clock p.m., at their committee room 226 Dirksen Senate Office Building, then and there to testify what you know relative to the Committee’s inquiry into the program or programs of warrantless electronic surveillance that include one that has been identified as the “Terrorist Surveillance Program,” and to bring with you the documents described in Attachment A under the terms and conditions stated therein. A personal appearance at the above-referenced date and time will not be necessary if the documents described in Attachment A are delivered to the Committee’s offices or, if they contain classified national security information, to the Office of Senate Security at least 24 hours prior to the scheduled return.

Hereof fail not, as you will answer your default under the pains and penalties in such cases made and provided.

To any Committee staff member or U.S. Marshal to serve and return.

Given under my hand, by authority vested
in me by the Committee, on this 27 day
of June , 2007

———————————

1. Complete and unredacted versions of the following:

A. All documents from September 11, 2001 to the present constituting the President’s authorization or reauthorization of the warrantless electronic surveillance program (see Definitions, #1);

B. All documents from September 11, 2001 to the present containing analysis or opinions from the Department of Justice, the National Security Agency, the Department of Defense, the White House, or any other entity within the Executive Branch on the legality of, or legal basis for, the warrantless electronic surveillance program, including documents that describe why the surveillance at issue should not or could not take place consistent with the requirements and procedures of the Foreign Intelligence Surveillance Act (FISA);

C. All documents from September 11, 2001 to the present, including orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC), and pleadings submitted to the FISC, that reflect communications with the FISC or any FISC judges about the warrantless electronic surveillance program, containing legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment to the Constitution, the Authorization for the Use of Military Force enacted on September 18, 2001, or the President’s authority under Article II of the Constitution

D. All documents from September 11, 2001 to the present that reflect, discuss, or describe agreements or understandings between the White House, the Department of Justice, the National Security Agency, or any other entity of the Executive Branch and telecommunications companies, internet service providers, equipment manufacturers, or data processors regarding criminal or civil liability for assisting with or participating in the warrantless electronic surveillance program;

E. All documents from September 11, 2001 to the present in the categories described in sections A-D, above related to the classified intelligence program that was the subject of discussion during the March
2004 hospital visit to former Attorney General John Ashcroft and other events that former Deputy Attorney General James Comey described in his May 15, 2007 testimony before the Senate Judiciary Committee, whether or not you consider that program to be covered by sections A-D, above;

F. All documents from December 1, 2005 to the present related to the investigation by the Department of Justice’s Office of Professional Responsibility (OPR) into the role of Department of Justice attorneys in the authorization and oversight of the warrantless electronic surveillance program, which was opened on January 11, 2006 and closed approximately three months later after OPR investigators were denied the necessary security clearances (”OPR Investigation”) that reflect, discuss, or describe: 1) consideration of the request for security clearances; 2) communications between White House personnel, including the President or the Vice President, and Department of Justice personnel about the OPR investigation or consideration of the request for security clearances; or 3) the reasons for ending that investigation;

G. All documents from January 1, 2004 to the present related to the transfer of the powers of the Attorney General from then-Attorney General John Ashcroft to then-Deputy Attorney General James Comey in or around March, 2004 that reflect, discuss, or describe 1) the date, time, or manner of that transfer of power; 2) communication with or notice to White House personnel, including the President or the Vice President, about that transfer of power; 3) knowledge of White House personnel about that transfer of power.

The documents produced under sections A-G, above shall include, but not
be limited to:

i. Any memoranda authored or co-authored by former Deputy Attorney General James Comey on or around March 10, 2004 concerning legal issues related to the warrantless electronic surveillance program or the classified intelligence program described in section E, above; =20

ii. All memoranda or opinions authored or co-authored by former Department of Justice officials Jack Goldsmith, Patrick Philbin, or John Yoo concerning legal issues related to the warrantless electronic surveillance program or the classified intelligence program described in section E, above;

iii. Any memoranda from the Department of Justice Office of Intelligence Policy and Review concerning legal issues related to the warrantless electronic surveillance program or the classified intelligence program described in section E, above.

iv. Any Department of Justice Office of Legal Counsel (OLC) memoranda or opinions concerning legal issues related to the warrantless electronic surveillance program or the classified intelligence program described in section E, above;

v. Any memoranda or opinions from then-Counsel to the President Alberto Gonzales and provided to Former Deputy Attorney General James Comey on or about March 10, 2004 concerning legal issues related to the warrantless electronic surveillance program or the classified intelligence program described in section E, above;

vi. Any certifications by the Attorney General or other Executive Branch official pursuant to 18 USC 2511(2)(a)(ii) provided to any telecommunications company, internet service provider, equipment manufacturer, or data processor in connection with requests for assistance with the warrantless electronic surveillance program or the classified intelligence program described in section E, above;

vii. The January 10, 2007 orders of the FISC referenced in the January 17, 2007 letter from Attorney General Gonzales to Senator Patrick Leahy, authorizing the warrantless electronic surveillance program.

Instructions

1. In complying with this subpoena, you are required to produce all responsive documents that are in your possession, custody, or control, whether held by you or your past or present agent, employee, or
representative acting on your behalf. You are also required to produce documents that you have a legal right to obtain, that you have a right to copy, or to which you have access, as well as documents that you have placed in the temporary possession, custody, or control or any third party.

2. No documents as defined herein called for by this request shall be destroyed, modified, removed, transferred, or otherwise made inaccessible to the Committee. If you have knowledge that any subpoenaed document as defined herein has been destroyed, discarded, or lost, identify the subpoenaed document and provide an explanation of the destruction, discarding, loss or disposal and the date at which then document was destroyed, discarded or lost.

3. This subpoena is continuing in nature. Any document not produced because it has not been located or discovered by the return date shall be provided immediately upon location or discovery subsequent thereto with an explanation of why it was not located or discovered by the return date.

4. If you believe any responsive documents are protected by a privilege, you are required to provide a privilege log that (1) identifies any and all responsive documents to which the privilege is asserted, (2) sets forth the date, type, addressee(s), author(s) (and, if different, the preparer and signatory), general subject matter, and indicated or known circulation of the document, and (3) states the privilege asserted in sufficient detail to ascertain the validity of the claim of privilege.

5. Production with respect to each document shall include all electronic versions and data files from email applications as well as from word processing, spreadsheet, or other electronic data repositories applicable to any attachments, and shall be provided to the Committee where possible in its native file format and shall include all original metadata for each electronic documents or data file.

6. To the extent possible, documents containing classified national security information must be segregated from those not containing such information. All classified documents must be handled consistent with relevant security laws and regulations and delivered to the Office of Senate Security in room S-407 of the United States Capitol.

Definitions

1. The term “the warrantless electronic surveillance program” as used in this subpoena refers to a classified intelligence program or programs that include electronic surveillance involving the interception without a court order, and without following the requirements and procedures of the Foreign Intelligence Surveillance Act, of communications with at least one participant present in the United States, including all related, predecessor, or subsequent versions of that program or programs. This includes a program that the Bush Administration has identified as the “Terrorist Surveillance Program” and at least some portion of which the President confirmed publicly in December 2005.

2. The term “document” as used in this subpoena includes all emails, memoranda, reports, agreements, notes, correspondence, files, records, and other documents, data or information in any form, whether physical or electronic, maintained on any digital repository or electronic media, and should be construed as it is used in the Federal Rules of Civil Procedure.

3. The terms “related” and “relating” with respect to any given subject, shall be construed broadly to mean anything that constitutes, contains, embodies, reflects, identifies, concerns, states, refers to, deals with or is in any manner whatsoever pertinent to the subject.

4. The terms “including” and “includes,” with respect to any given subject, shall be construed broadly so that specification of any particular matter shall not be construed to exclude any documents that you have reason to believe the Committee might regard as responsive.

5. The term “Department of Justice” includes without limitation, anyone presently or formerly employed, assigned, or detailed there.

6. The term “White House” includes: all offices, individuals, or entities within the White House Office, including the Office of the Counsel to the President, the Office of the Chief of Staff, and the President himself; the Office of the Vice President, including the Vice President himself; and the National Security Council and its staff.

7. The term “Bush Administration” refers to the Executive Branch during the terms of presidency of George W. Bush.

8. The terms “you” and “your” include you individually, in your capacity as Attorney General, as well as the Department of Justice, and, without limitation, anyone presently or formerly employed, assigned, or detailed there.