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Leahy considering contempt charges for Bush officials over wiretap subpoenas

[JURIST] US Senate Judiciary Committee chairman Senator Patrick Leahy (D-VT) Monday threatened to hold top members of the Bush administration in contempt if they continue to refuse to turn over subpoenaed information about the warrantless domestic surveillance program [JURIST news archive]. The Senate Judiciary Committee issued formal subpoenas for the surveillance documents on June 27, setting an initial compliance deadline of July 18, later extended to August 20 [letter, PDF]. White House counsel Fred Fielding told Leahy in a letter [PDF text] Monday that the White House needed more time to comply with the request, but Leahy insisted that the Committee had waited long enough. He said he would suggest contempt proceedings before the committee when the Senate reconvenes.

In a statement [text] Monday, Leahy said:

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. ...

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. ...

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.
On Friday, a spokesman for Leahy reacted coolly [press statement; JURIST report] to a White House bid to extend until after Labor Day the deadline for compliance with committee subpoenas [JURIST report; subpoena packets, PDF]. Fielding has said that many of the documents subpoenaed could be subject to executive privilege and contained "extraordinarily sensitive national security information." AP has more.

UPDATE - According to a letter [PDF text] made public by Leahy's office Tuesday, the office of the vice president has more than 40 "Top Secret/Codeword Presidential Authorizations" and memoranda from the DOJ that could answer the Senate Judiciary Committee subpoenas. Shannon Coffin, counsel to the Vice President, wrote that the office would continue to look for requested documents, but reitterated an earlier request for mroe time. AP has more.

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