A former top lawyer for the Bush administration on Tuesday said that parts of the government's much-criticized eavesdropping program were illegal.
There were aspects of the Terrorist Surveillance Program "that I could not find the legal support for," Jack Goldsmith, the former head of the Justice Department's Office of Legal Counsel, told the Senate Judiciary Committee.
But he would not say exactly what law or constitutional principle the surveillance violated. Goldsmith said the White House has forbidden him from saying anything about the legal analysis underpinning the program — key details long sought by majority Democrats and some Republicans.
As the Justice Department's top legal adviser to the White House from 2003 to 2004, Goldsmith was in charge of writing formal legal opinions and interpretations for the executive branch.
The legal rationale for the program is so secretive it initially was not even shared with top officials, including the general counsel of the National Security Agency, which conducted the surveillance.
Then-Deputy Attorney General James Comey also was not "read into," or advised about, the TSP program, despite his role in implementing the warrantless surveillance. As deputy, Comey would have been responsible for approving warrantless surveillance requests when the attorney general was not available.
Goldsmith said he assumes that the White House does not want the legality of the TSP program scrutinized, and he said "the extreme secrecy — not getting feedback from experts, not showing it to experts — led to a lot of mistakes."
Adding to questions about legality
The legal justification for the eavesdropping program has been a central point of a standoff between the White House and Senate Judiciary Committee Chairman Patrick Leahy. The Vermont Democrat has said he wants certain information about the administration's surveillance and interrogation methods before he will schedule confirmation hearings for Michael Mukasey, Bush's choice for attorney general.
Key to the debate is a March 2004 showdown at the hospital bedside of then-Attorney General John Ashcroft as he recovered from gall bladder surgery.
Goldsmith, who was in the room, confirmed Comey's earlier account that a physically weak Ashcroft rebuffed White House officials who were trying to get him to reauthorize the eavesdropping program. According to Goldsmith, Ashcroft said he believed the program was illegal.
Goldsmith also confirmed he was among Justice Department lawyers who threatened to resign after the hospital standoff because of the White House's attempt to get around the Justice Department's opinion of the program. The threat of a mass walkout ultimately convinced the White House to adjust the program.
In his testimony, Goldsmith also contradicted former Attorney General Alberto Gonzales, who told the committee earlier this year there was no dissent in the administration about the legality of the program.
Between 2001 and 2007, the U.S. government eavesdropped on an undisclosed number of people and entities in the United States without approval of the Foreign Intelligence Surveillance Court. That court was created 30 years ago to oversee surveillance activities inside the country after Congress learned the government had been secretly eavesdropping on Americans for decades, in some cases for political gain.
The FISA court is meant to balance the government's need to periodically collect intelligence inside the United States and the U.S. public's right to privacy. Secret FISA court orders can compel telecommunications companies to cooperate with government surveillance requests and indemnify them from lawsuits.
About 40 pending lawsuits
The Bush administration has asked Congress to grant retroactive immunity to telecommunications companies that cooperated. Around 40 lawsuits related to the surveillance are pending in federal courts. The administration has refused to give Congress details on the companies' involvement.
On Tuesday, the House Energy and Commerce Committee went to the companies themselves, asking AT&T, Verizon and Qwest for details on the government's secret surveillance program.
Of the three, reportedly only Qwest rebuffed the government, insisting on a FISA court order first. The law prohibits telecommunications companies from sharing customer records without a court order.
The committee asked in letters sent Tuesday whether the companies allowed government agencies to install equipment on telecommunications lines to copy private Internet traffic, whether they have provided information on customers' networks of associates to the FBI, and whether they have ever been offered legal indemnity or compensation for cooperating with surveillance requests.