By PETE YOST
A former top national security lawyer at the Justice Department questions the Bush administration’s legal rationale for its warrantless eavesdropping program, newly released documents show.
David Kris, now the chief ethics and compliance officer at Time Warner Inc., said in a Jan. 19 e-mail that administration legal arguments put forth a month after the program was publicly disclosed had "a slightly after-the-fact quality or feeling to them."
Kris wrote the e-mail to an aide to Attorney General Alberto Gonzales the same day Gonzales sent a 42-page white paper to Congress. It said the president has inherent war powers under the Constitution to order eavesdropping without warrants.
Kris was an associate deputy attorney general from 2000 to 2003 dealing with national security issues, but there was no indication he was aware of the National Security Agency program or participated in internal deliberations about it during his government tenure.
The Bush administration released the e-mail traffic under the Freedom of Information Act. It had been requested by the Electronic Privacy Information Center, the American Civil Liberties Union and the National Security Archive. The administration asked for four additional months to process additional classified materials.
One of the administration’s arguments for the eavesdropping program is that obtaining warrants from a secret court under the Foreign Intelligence Surveillance Act is a time-consuming process unsuited for the fast-moving war on terror.
The program authorized NSA to monitor telephone and e-mail conversations between people located in the United States and suspected terrorists overseas.
"Claims that FISA simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to" constitutional powers "in violation of the statute," Kris wrote in one document undercutting the administration’s defense.
The 1978 Foreign Intelligence Surveillance Act requires court warrants for domestic eavesdropping. Gonzales said the law’s constitutionality is doubtful if it is interpreted as blocking the president’s constitutional powers.
"I’m making my way through the white paper now," Kris wrote the Gonzales aide, "and of course it’s very professional and thorough and well written."
Kris added, "I kind of doubt it’s going to bring me around on the statutory arguments … but you never know, and in any event I can respect the analysis even if I don’t fully agree."
In a Dec. 22 e-mail to the Gonzales aide, six days after The New York Times revealed the existence of the program, Kris wrote, "It looks like you guys are leading with" congressional authorization as providing Bush the legal authority for carrying out the domestic spying and then falling back on constitutional arguments.
"If I’m reading it right, that’s an interesting choice," Kris wrote. "Maybe it reflects the VP’s philosophy that the best defense is a good offense."
Kris’s reference to Vice President Dick Cheney focuses on the still-unanswered question of precisely what role the vice president played in the program’s creation and in formulating a defense once the administration became enmeshed in controversy over it.