2003 Draft Legislation Covered Eavesdropping
Justice Dept. Officials Call Measure Unrelated; Critics Say Bush
Claims Are Undermined
By Dan Eggen
Washington Post Staff Writer
Saturday, January 28, 2006; A02
Legislation drafted by Justice Department lawyers in 2003 to
strengthen the USA Patriot Act would have provided legal backing for
several aspects of the administration's warrantless eavesdropping
program. But officials said yesterday that was not the intent.
Most lawmakers and the public were not aware at the time that
President Bush had already issued a secret order allowing the National
Security Agency to intercept international calls involving
U.S. citizens and legal residents.
Some critics of the NSA program said the draft legislation raises
questions about recent administration claims that Bush had clear legal
authority to order warrantless domestic spying in late 2001 and had no
need to go to Congress for explicit approval.
"It's rather damning to their current view that they didn't need
legislation," said Timothy H. Edgar, a national security lawyer at the
American Civil Liberties Union. "Clearly the lawyers at the Justice
Department, or some of them, felt that legislation was needed to allow
the government to do what it was doing."
But the Justice Department said that the measures were not drafted to
help the NSA effort.
"These proposals were drafted by junior staffers and never formally
presented to the attorney general or the White House," said department
spokeswoman Tasia Scolinos. "They were not drafted with the NSA
program in mind."
The Domestic Security Enhancement Act of 2003 -- dubbed "Patriot II"
by critics -- was leaked to the media in February 2003 and soon
abandoned by Justice officials, who characterized it at the time as an
"early draft" written by staff lawyers. The proposal included several
provisions that, in retrospect, would have affected the NSA's program
of monitoring telephone calls and e-mails, which was disclosed last
month in press reports.
One provision would have made it clear that the president could order
wiretapping without court supervision for 15 days after Congress
approved the use of military force, as it did against al Qaeda.
Current law allows such spying for 15 days without a judge's approval
only when Congress issues a declaration of war.
Justice officials have argued more recently that the two types of
declarations are legally equivalent.
Another section of the 2003 proposal would have made it easier for the
NSA to obtain lists of telephone calls placed or received by
U.S. citizens and residents.
A third provision would have created a "statutory defense" for agents
who conducted surveillance under "lawful authorization" from the
president or attorney general, meaning they could not be prosecuted
for violating federal law, according to the draft. The Foreign
Intelligence Surveillance Act (FISA), which governs domestic spying,
provides such a defense only if the surveillance was approved by a
secret intelligence court established by that law.
Some legal experts who question the president's authority to order
warrantless eavesdropping said the latter proposal could be used to
justify the legality of the entire NSA program, because it refers to
surveillance activity ordered by the president or attorney general and
not overseen by either the FISA or criminal courts.
"It would have done it through the back door and in such a way that it
would have been unlikely that Congress would have picked up on what
was meant," said Kate Martin, director of the Center for National
Security Studies, a civil liberties advocacy group in Washington.
Attorney General Alberto R. Gonzales said last month that the
administration had considered seeking legislation authorizing the NSA
program but had determined it would be impossible and could expose the
highly classified program to the public. Scolinos said Gonzales was
not referring to the 2003 draft proposals, which she characterized as
a compendium of ideas compiled by staff lawyers.
"It is common when drafting any new policy to debate various ideas and
proposals," she said.
Officials have said the NSA program was known only to a relatively
small group of senior officials at Justice, including then-Attorney
General John D. Ashcroft and his deputies.
In Senate testimony in March 2003, Ashcroft said some proposals for
legislation strengthening the Patriot Act were under consideration but
nothing formal had been drafted.
Many legal scholars and lawmakers have said Bush's NSA order may
violate either FISA or the Constitution. An analysis by the
nonpartisan Congressional Research Service also concluded that the
warrantless surveillance effort directly conflicts with Congress's
intentions in passing the FISA law in 1978 and said other legal
justifications were "not as well grounded" as the administration
The Justice Department and Gonzales have responded with a variety of
statements and documents aimed at bolstering the administration's
legal arguments in the weeks leading up to Feb. 6, when the Senate
Judiciary Committee has scheduled a hearing on the program. Committee
Democrats sent a letter to Gonzales yesterday requesting documents
related to electronic surveillance policies and the congressional
authorization of force against al Qaeda.
Also yesterday, the Justice Department released a list of defenses of
the "NSA terrorist surveillance program" under the heading "myth
vs. reality," reiterating arguments that the effort is legal, is
"narrowly focused" and follows in a tradition of warrantless
eavesdropping during wartime.
The document also repeats recent claims by Gonzales and others that
the FISA law is too cumbersome for use in rapidly intercepting
overseas telephone calls, although it says the process is fine for
purely domestic communications.
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