Welcome to Gonzales Watch - Blawging the Ex-Attorney General

White House Counsel Fred Fielding rejected subpoenas from Congress seeking documents and testimony from former White House aides to President Bush in the Justice Department’s U.S. Attorney firings scandal .

The full text of Fielding’s letter can be read below.

On June 13th, the Senate and House subpoenaed former White House Counsel Harriet Miers and White House Political Director Sarah Taylor.

The subpoena for ex-White House Counsel Harriet Miers sought “[c]omplete and unredacted versions, including paper and electronic versions, of any and all documents in your possession, custody or control related to the Committee’s investigation into the preservation of prosecutorial independence and the Department of Justice’s politicization of the hiring and firing of United States Attorneys.”

Fielding tells Senate Judiciary Committee Chairman Patrick Leahy (Dem. - Vt.) and House Committee on the Judiciary Chairman John Conyears (Dem. - Mich.) that Executive Privilege protects Pres. Bush from having to respond to the subpoenas: “where the President’s authority to appoint and remove U.S. Attorneys is at stake, the institutional interest of the Executive Branch is very strong.”

Using litigator’s language, Fielding stressed that “the President’s assertion of [Executive Privilege] here comports with prior practices in similar contests, and that it has been appropriately documented.” (emphasis added).

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