Justice Deputy Resisted Parts Of Spy Program

Justice Deputy Resisted Parts of Spy Program

http://www.nytimes.com/2006/01/01/po...rssnyt&emc=rss

By ERIC LICHTBLAU and JAMES RISEN
Published: January 1, 2006

WASHINGTON, Dec. 31 - The top deputy to then-Attorney General John Ashcroft refused two years ago to approve important parts of the secret program that allows domestic eavesdropping without warrants, prompting two leading White House aides to try to win the needed approval from Mr. Ashcroft himself while he was hospitalized after a gall bladder operation, according to officials knowledgeable about the episode.

With Mr. Ashcroft recuperating from gall bladder surgery in March 2004, his deputy, James B. Comey, who was then acting as attorney general, was unwilling to give his certification to crucial aspects of the classified program, as required under the procedures set up by the White House, said the officials, who asked for anonymity because the program is classified and they are not authorized to discuss it publicly.

That prompted two of President Bush's top aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now the attorney general - to make an emergency visit to George Washington University Hospital to review the program with Mr. Ashcroft during what aides have described as a difficult recovery, the officials said.

The White House and Mr. Ashcroft, through spokesmen, declined to comment Saturday on the emergency meeting. "As the president has stated, the intelligence activities that have been under way to prevent future terrorist attacks have been approved at the highest levels of the Justice Department," said Jeannie Mamo, a White House spokeswoman.

Accounts from other officials differed as to exactly what was said at the meeting at the hospital. Some officials indicated that Mr. Ashcroft, like his deputy, was also reluctant to give his signoff to continuing with aspects of the program in light of concerns among some senior government officials about the program's legality and its operational controls.

It was unclear whether the White House ultimately persuaded Mr. Ashcroft to approve the program or whether the White House moved ahead without his concurrence. What is known is that in early 2004, about the time of the hospital meeting, the White House suspended parts of the surveillance program for several months and moved ahead with more stringent requirements on the National Security Agency on how the program was used, in part to guard against possible abuses.

The Justice Department's concerns appear to have led, at least in part, to the suspension, and it was the Justice Department that oversaw an audit conducted on the program.

The audit examined a selection of cases to see how the N.S.A. went about determining that it had probable cause to believe that someone in the United States, including American citizens, had sufficient ties to Al Qaeda to justify the extraordinary step of eavesdropping on their phone calls and e-mail messages without a court warrant. That review is not known to have found any instances of documented abuses.

Officials with knowledge of the hospital meeting said it marked a critical juncture in the N.S.A. program and underscored questions about its operations, how it was overseen and what its future would be. Those questions are likely to be central to a Congressional hearing planned by Sen. Arlen Specter, the Pennsylvania Republican who heads the Judiciary Committee.

Mr. Specter, like some other Republicans and many Democrats in Congress, voiced deep concerns about the program and Mr. Bush's legal authority to bypass the courts to order domestic wiretaps.

One government official said that the White House aides took the unusual step of contacting Mr. Ashcroft while he was hospitalized because of the urgent need for his certification of at least certain aspects of the program.

"You have to look at when Ashcroft was sick," the official said. "They needed him for certification."

The warrantless domestic eavesdropping program was first authorized by President Bush in the months after the Sept. 11 attacks, officials said. Initially, it was focused on communications into and out of Afghanistan, including international calls between Afghanistan and the United States. But the program quickly expanded.

Several senior government officials say that when the special operation first began, there were few controls on it. Some N.S.A. officials wanted nothing to do with it, apparently fearful of participating in an illegal operation, according to a former senior Bush administration official.

It was not until 2004 that the Justice Department finally conducted its audit, officials say. At that point, the Justice Department provided the N.S.A. with a checklist with which agency officials could determine whether they had probable cause to eavesdrop on specific communications into and out of the United States.

Officials have suggested that until that time, the N.S.A. was operating without clear probable cause guidelines. Concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program briefly and revamp it in 2004.

Even after the Justice Department audit, the N.S.A. still had the authority to choose its eavesdropping targets and did not have to get specific approval from Justice Department or other Bush administration officials before it began surveillance on an individual's phone calls or e-mail messages, officials have said.