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Related posting

13 February 2006
Department of Justice concedes it can begin to release internal warrantless surveillance records on March 3

In the news

"Legal Rationale for Spy Program Questioned"
By Pete Yost
Associated Press (via Washington Post)
March 9, 2006

"Private groups seek access to spying documents"
By Pete Yost
Associated Press (via MSNBC)
February 10, 2006

Justice Department e-mail on wiretapping
program released through FOIA

Former official describes legal defenses as "weak" and "slightly after-the-fact,"
Guesses they reflected "VP's philosophy… best defense is a good offense."

For more information contact:
Thomas Blanton or Kristin Adair
202/994-7000

Washington, D.C., March 9, 2006 - The Justice Department official who oversaw national security matters from 2000 to 2003 e-mailed his former colleagues after revelation of the controversial warrantless wiretapping program in December 2005 that the Department's justifications for the program were "weak" and had a "slightly after-the-fact quality" to them, and surmised that this reflected "the VP's philosophy that the best defense is a good offense," according to documents released through a Freedom of Information Act lawsuit brought by the Electronic Privacy Information Center and joined by the ACLU and the National Security Archive.

David Kris, the former associate deputy attorney general who now serves as chief ethics and compliance officer at Time Warner, e-mailed Justice Department official Courtney Elwood on 20 December 2005 his own analysis of the controversy, writing that "claims that FISA [the wiretapping statute] simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to Article II power in violation of the statute." The subject line of the e-mail was "If you can't show me yours."

On 22 December, after reading the Department's talking points as forwarded by Elwood, Kris commented that the Department's approach "maybe… reflects the VP's [Vice President Cheney] philosophy that the best defense is a good offense (I don't expect you to comment on that :-))."

On 19 January 2006, Kris wrote Elwood that the Department's white paper was "professional and thorough and well written" but that "I kind of doubt it's going to bring me around on the statutory arguments."

The Kris e-mails were the only substantive new documents released by the Justice Department yesterday in response to the March 8 deadline ordered by U.S. District Court Judge Henry Kennedy in the FOIA lawsuit brought by EPIC together with the ACLU and the Archive, seeking the internal legal justifications used by the government to carry out the wiretapping program. In three separate letters to the plaintiffs, Justice claimed it had fully searched the records of the Office of the Attorney General and had made a "full grant" of the FOIA requests, yet most of the released material consisted of the previously released white paper and transcripts of public appearances by the Attorney General. Justice produced not a single record relating to any of the 30-odd reauthorizations of the wiretapping program that President Bush has publicly stated took place in 2002, 2003, 2004 and 2005.

Justice's Office of Legal Counsel (OLC) admitted in its response that in the two-and-a-half months since the FOIA requests were filed, OLC had only completed its search of its unclassified files. "The unclassified files are exactly the place where the wiretapping memos are least likely to exist," commented Thomas Blanton, director of the National Security Archive. "This is a case of looking for your car keys under the street lamp even if that's a block away from where you lost them."


Documents released by the Justice Department - March 8, 2006
Note: The following documents are in PDF format.
You will need to download and install the free Adobe Acrobat Reader to view.


Office of Information and Privacy (OIP) Release 1

Letter Accompanying White Paper from Attorney General Alberto Gonzales to Senator Bill Frist, January 19, 2006

Justice Department White Paper, Legal Authorities Supporting the Activities of the NSA Described by the President, January 19, 2006

E-Mail, Justice Department Office of Public Affairs (Elwood, Courtney), Transcripts of Attorney General Alberto Gonzales on Morning Shows 12.19.05, December 19, 2005

Transcript of Attorney General Interview on CNN's "American Morning" with Soledad O'Brien

Transcript of Attorney General Interview on Fox News' "Fox and Friends" with Steve Doocy


OIP Release 2

E-mail from Matthew T McDonald (EOP) to Monica Goodling, In Case You Missed It: Attorney General Alberto Gonzales on CNN's "Larry King Live," January 17, 2006

Justice Department press release, Transcript of Conference Call with Steven G. Bradbury on Release of Detailed Legal Analysis of the NSA Activities Described by the President, Dept. of Justice, January 19, 2006

E-Mail, USDOJ Office of Public Affairs (Goodling, Monica), Corrected: Transcript of Attorney General Alberto R. Gonzales and Homeland Security Secretary Michael Chertoff Press Briefing Need for Senate to Reauthorize the USA Patriot Act, December 21, 2005

E-Mail, USDOJ Office of Public Affairs (Goodling, Monica), Transcript of Remarks by Attorney General Alberto R. Gonzales at the 'Innocence Lost' Initiative Press Conference, December 16, 2005

E-Mail from Kris, David (Timewarner.com) to Elwood, Courtney (USDOJ), RE: IN CASE YOU MISSED IT: President Had Legal Authority to OK Taps, December 21, 2005

Justice Department, Legal Authority for the Recently Disclosed NSA Activities, Undated

E-Mail from Kris, David (Timewarner.com) to Elwood, Courtney (USDOJ), RE: NSA Talkers, December 22, 2005

E-Mail from Kris, David (Timewarner.com) to Elwood, Courtney (USDOJ), If You Can't Show Me Yours…, with attachment, NSA Program Questions, December 20, 2005

E-Mail from Kris, David (Timewarner.com) to Elwood, Courtney (USDOJ) - RE: NSA, January 19, 2006


Office of Legal Counsel (OLC) Release 1

Letter from William E. Moschella, Assistant Attorney General to Senators Roberts, Rockefeller, Hoekstra and Harman, December 22, 2005

Memo, Legal Authority for the Recently Disclosed NSA Activities, [undated and unsigned]

"Americans Deserve No Less," Robert McCallum, USA Today, January 16, 2006

Justice Department press release,Transcript of Conference Call with Steven G. Bradbury on Release of Detailed Legal Analysis of the NSA Activities Described by the President, January 19, 2006


OLC Release 2

Justice Department White Paper, Legal Authorities Supporting the Activities of the NSA Described by the President, January 19, 2006

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