WASHINGTON -- The Senate Judiciary Committee yesterday issued subpoenas to the Bush administration for documents related to its warrantless surveillance program, elevating a long-simmering dispute between Congress and the White House over classified national-security information into a possible constitutional showdown.
The Bush administration did not say yesterday whether it would comply with the subpoenas, which were addressed to the White House, the office of Vice President Dick Cheney, the National Security Council, and the Justice Department. White House spokesman Tony Fratto said the administration "will respond appropriately" to the committee's action, even as he condemned it.
"It's unfortunate that congressional Democrats continue to choose the route of confrontation," Fratto said.
However, only three of the nine Republicans on the committee voted against authorizing the subpoenas, which were approved by a 13-to-3 vote. The committee, under both Republican and Democratic leadership, has been seeking information about the program and questioning its legality since The
"Our attempts to obtain information through testimony of ad ministration witnesses have been met with a consistent pattern of evasion and misdirection," wrote Senate Judiciary Committee chairman Patrick Leahy , Democrat of Vermont, in a letter accompanying the subpoenas. "There is no legitimate argument for withholding the requested materials from this committee. The administration cannot thwart the Congress's conduct of its constitutional duties with sweeping assertions of secrecy and privilege."
Congress gave administration officials until July 18 to comply with its demand for information. If the administration refuses , the committee and then full Senate would have to vote on whether to cite the officials for criminal contempt, which could lead to a lengthy battle over executive privilege and the constitutional separation of powers.
Since 1975, according to the Congressional Research Service, 10 senior executive branch officials have been cited for contempt for failing to produce subpoenaed documents. In all 10 instances, however, the executive branch worked out a deal that satisfied Congress before any criminal proceedings were initiated.
Specifically, the committee is seeking documents related to White House authorization and reauthorization of the warrantless surveillance program, internal memos analyzing whether the surveillance is legal, agreements with telecommunications companies that assisted in the spying, orders by a secret national-security court regarding the program, and papers concerning President Bush's decision to shut down an in-house Justice Department investigation related to the program.
The program dates to the weeks after the terrorist attacks of Sept. 11, 2001, when Bush signed an order authorizing the military's National Security Agency to monitor Americans' international phone calls and e-mails without a judge's approval.
A 1978 statute makes it a felony to conduct such surveillance without a warrant, but the president's legal team secretly asserted that his wartime powers include an unwritten right to bypass such laws at his own discretion. Cheney and his counsel, David Addington , were the leading proponents of the program and the controversial legal theory supporting it, former administration lawyers have said.
In the years that followed, the White House kept the program secret from most members of Congress. Cheney personally conducted a handful of limited briefings about the program, telling only a few top leaders in the Republican-controlled Congress, who were not allowed to discuss it with anyone else.
In 2006, after the Times revealed the existence of the program, the Senate Judiciary Committee -- then under the leadership of Senator Arlen Specter, Republican of Pennsylvania -- sought information that would shed light on whether it was legal. The administration refused to cooperate. Specter was among the Republicans who voted to authorize the subpoenas against the White House; so did Orrin Hatch of Utah, a fellow Republican and Specter's predecessor as committee chairman.
The Justice Department's Office of Professional Responsibility, which polices compliance with legal ethics, opened an investigation into whether department lawyers knowingly signed off on a faulty interpretation of the law to give the program legal cover. But Bush shut down the investigation by refusing to grant the office security clearance.
In August 2006, a federal judge in Michigan ruled that the program was illegal. But in January 2007, while that ruling was on appeal, Attorney General Alberto Gonzales announced that the dispute was moot because a judge on a special national security court had agreed to allow the NSA's surveillance to continue under some form of court oversight. The details of that order have not been made public.
It did not end the controversy, however. Last month, former deputy attorney general James B. Comey told the House Judiciary Committee that nearly all the top leadership of the Justice Department -- including then-Attorney General John Ashcroft and FBI director Robert S. Mueller III -- nearly resigned in March 2004 in a dispute with the White House over whether the program was legal.
Comey's much-discussed testimony included a description of a race to Ashcroft's hospital room and a bedside confrontation with Gonzales, then the White House counsel. Comey testified that Gonzales tried to get Ashcroft, who was semi-sedated, to certify that the program was legal, despite the Justice Department's doubts.
When Ashcroft refused, Bush re authorized the program anyway, prompting the threat of a mass resignation, Comey told the committee. To defuse the situation, Bush agreed to make unspecified changes to the program that would increase its legality in the eyes of the Justice Department.
Since the program became public, the Bush administration has repeatedly maintained that surveillance without court oversight was both legal and necessary to protect the nation from terrorist attacks. Administration officials repeated those assertions yesterday.
In addition, the administration has insisted that the Judiciary Committee is not entitled to know about classified legal documents surrounding the program. Instead, the White House has shared the information only with members of the secretive Intelligence Committee, though the committee is not responsible for oversight of Justice Department lawyers.
Yesterday, Justice Department spokesman Dean Boyd pledged to "work closely with the Congress as they exercise their oversight functions," but also expressed reservations about discussing the program more broadly.
"It is vital to protect sensitive intelligence sources and methods associated with this kind of national security information, particularly when it relates to intelligence programs that are the subject of oversight by the Intelligence committees," Boyd said. "We must also give appropriate weight to the confidentiality of internal executive branch deliberations."
But Leahy emphasized that the committee does not want any "intimate operational facts" about how the high-tech program works and is willing to allow the administration to redact any of those details.
The American Civil Liberties Union, which challenged the legality of the program in a 2006 lawsuit, said in a statement: " This is the beginning of the end of this administration riding roughshod over our Constitution."