November 2, 2008 – Reporting from Washington — A judge has ordered the Justice Department to produce White House memos that provide the legal basis for the Bush administration’s post-Sept. 11 warrantless wiretapping program.
U.S. District Judge Henry Kennedy Jr. signed an order Friday requiring the department to produce the memos by the White House legal counsel’s office by Nov. 17. He said he would review the memos to determine whether any information could be released publicly without violating attorney-client privilege or jeopardizing national security.
Kennedy issued his order in response to lawsuits by civil liberties groups in 2005 after news reports disclosed the wiretapping program.
The department argued that the memos were protected attorney-client communications and contained classified information. But Kennedy said that the attorney-client argument was “too vague” and that he would have to look at the documents to determine whether that argument was valid and also to see whether there was information that could be released without endangering national security.
Justice Department spokesman Dean Boyd said the department was reviewing the opinion and would “respond appropriately in court.”
Shortly after the Sept. 11 attacks, President Bush authorized the National Security Agency to spy on calls between people in the U.S. and suspected terrorists abroad without obtaining court warrants. The administration said that it needed to act more quickly than the court could and that the president had inherent authority under the Constitution to order warrantless domestic spying. After the program was challenged in court, Bush last year put it under the supervision of the Foreign Intelligence Surveillance Court, established in 1978 after the domestic spying scandals of the 1970s.
“We think just as a common-sense matter the legal theories for the president’s wiretap programs cannot be classified and should be available to the public,” said Marc Rotenberg, president of the Electronic Privacy Information Center, one of the groups seeking the memos.
“It’s an important decision because up to this point the judge has relied on the government’s assertion that it has done everything properly under the law and that it has disclosed everything it needs to disclose,” Rotenberg said.