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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."

The National Security Archive | March 10 2006

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."

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