[IP] Justice Dept e-mail on wiretapping program released through FOIA

[David Farber]

-------- Original Message --------
Subject: Justice Dept e-mail on wiretapping program released through FOIA
Date: Thu, 09 Mar 2006 12:22:27 -0800
From: Jim Warren <jwarren at well.com>
To: Dave Farber <dave at farber.net>

From: The National Security Archive [mailto:NSARCHIVE at hermes.gwu.edu] On
Behalf Of National Security Archive
Sent: Thursday, March 09, 2006 1:12 PM

National Security Archive Update, March 9, 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:
Thomas Blanton or Kristin Adair - 202/994-7000

http://www.nsarchive.org

Washington, D.C., 9 March 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 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."

http://www.nsarchive.org

________________________________________________________

THE NATIONAL SECURITY ARCHIVE is an independent non-governmental
research institute and library located at The George Washington
University in Washington, D.C. The Archive collects and publishes
declassified documents acquired through the Freedom of Information Act
(FOIA). A tax-exempt public charity, the Archive receives no U.S.
government funding; its budget is supported by publication royalties and
donations from foundations and individuals.

_________________________________________________________

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