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."
‘Patriot II’ never gained traction
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.
A ‘back-door’ defense
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.
Legal justification questioned
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 asserts.
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.