Statement Of Senator Leahy On Bush Administration’s Failure To Comply With Subpoenas For Warrantless Wiretapping Documents

August 20, 2007 -- "Today was the deadline for the Administration to comply with the Judiciary Committee’s subpoenas for documents related to the legal justifications for and President’s authorization of the warrantless wiretapping program. The Administration failed to adequately comply, despite our granting an extension of more than a month past the original return date. The Administration has produced no documents, no adequate basis for noncompliance, no privilege claims, and no complete privilege log.

For more than six years, the Bush Administration intercepted communications of Americans in the United States without warrants and without following the required procedures of the Foreign Intelligence Surveillance Act (FISA). Since the President confirmed his warrantless surveillance program in December 2005, the Senate Judiciary Committee has conducted an inquiry into that program of warrantless electronic surveillance. Our focus has been on the legality of that program, not on its operational details.

In June, the Senate Judiciary Committee subpoenaed the information regarding the Administration’s legal analysis. We did this following a bipartisan vote of the Committee, and we did after almost two years of seeking voluntary cooperation from officials for the legal justifications on which the Administration based its contention that it could operate outside the law. Initially, July 18th was set as the date for the information to be produced. As the date approached I received a telephone call from Joshua Bolten and Fred Fielding asking for more time to assemble and review the materials called for by the subpoenas. Mr. Fielding estimated that could be done by August 1. I granted the Administration’s request for the extension of time and looked forward to its compliance. Instead, there has been noncompliance and dilatory unresponsiveness. One week after the time requested had passed, I set August 20th as the new return date. This is almost two months after service of the subpoenas and three weeks past the time the White House counsel estimated would be needed.

With the temporary amendment to FISA that the Administration demanded be passed in early August set to expire in a few months, it is essential that we understand how the Bush Administration has interpreted FISA and how it has justified its activities outside that statutory framework. If we are to consider more permanent legislative changes to FISA, this is now vitally important. For Congress to legislate effectively in this area it must have full information about the Executive Branch’s interpretations of FISA. We cannot and should not legislate in the dark while the Administration hides behind a veil of secrecy. The Administration’s failure to comply with the Judiciary Committee’s subpoenas for its legal analysis gives me little comfort.

I received a letter this morning from the Office of the Vice President identifying some documents that would be responsive to the Committee’s subpoena. The acknowledgement of these documents is a good first step, and it should be followed by the Administration turning them over to the Committee pursuant to the subpoena. I have worked in good faith with this Administration, first seeking the information voluntarily from officials and then accommodating their requests for more time. Unfortunately, that good faith has been met with continued stonewalling tactics of dodge and delay.

The Administration’s response today also claims that the Office of the Vice President is not part of the Executive Office of the President. That is wrong. Both the United States Code and even the White House’s own web site say so – at least it did as recently as this morning. The Committee’s authorization, approved in a bipartisan 13-3 vote, clearly covered the three offices cited in the subpoena. In fact, the Committee responsibly narrowed its request to specify only these three offices that have been linked to the domestic surveillance program, rather than all of the offices within the Executive Office of the President.

The letter I received today from the White House Counsel did not identify any documents, but expressed vague hopes of negotiation and accommodation while raising the specter of more privilege claims. If the White House is serious about complying with the subpoena, then I would work out arrangements to protect national security and classified documents. It is not enough for the White House to try to look reasonable at the last minute after months of delay, it is well past time for the White House to start acting reasonably.

The Senate Judiciary Committee has been willing to accommodate reasonable requests and to work with the Administration to allow it to respond to our subpoenas. I had hoped the White House would use this additional time constructively to finish gathering the relevant information and to work with us in good faith to provide it so that we will have the information we need to conduct effective oversight at long last. Again today, however, the Administration has failed to adequately respond to the Judiciary Committee’s subpoenas. The Administration has not provided a single responsive document, has provided no basis for any claim of privilege, and has provided no detailed log of withheld documents."

Source: Senator Patrick Leahy

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