Bush answers subpoena with FISA demand

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MONTEBELLO, Quebec — The Bush administration yesterday signaled to Senate Democrats that it will provide the legal rationale for its domestic surveillance program if Democrats reciprocate by permanently updating the key law governing foreign spying.

White House officials sent two letters to SenateJudiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, in response to a subpoena deadline set to expire yesterday. One letter asked for more time to respond, but a letter from Vice President Dick Cheney’s office identified key documents that “may be responsive to the subpoena,” in which Mr. Leahy asked for the legal grounds for the program.

The letter from Shannen W. Coffin, counsel to the vice president, identified 43 dates — from Oct. 4, 2001, to Dec. 8, 2006 — for which Mr. Cheney’s office has “copies of Top Secret/Codeword Presidential Authorizations.” The letter also said Mr. Cheney’s office has copies of 10 Justice Department memos about the domestic spying program.

The second letter, from White House Counsel Fred F. Fielding, asked Mr. Leahy for more time to respond to his subpoena and noted that much of the requested information could be subject to executive privilege. President Bush claimed executive privilege in response to several Democratic subpoenas.

White House spokesman Tony Fratto said the administration’s stated desire to cooperate with Mr. Leahy is linked to efforts to have Congress permanently update the Foreign Intelligence Surveillance Act.

“Mr. Fielding is seeking to reach an accommodation to provide the SenateJudiciary Committee — and other involved committees of the House and Senate — with appropriate information, while furthering our mutual goal of modernizing FISA,” Mr. Fratto said.

Congress approved an update of FISA before leaving Washington for its summer recess, but that approval expires in 180 days. The reforms, pushed hard by White House officials before Congress recessed, relieves the government of needing approval from the FISA court if it wants to spy on a target outside the U.S., the Bush administration said.

Laws governing surveillance of wired communications infringed on law enforcement’s ability to monitor e-mail and cell-phone traffic that originated in foreign countries but was routed through U.S. carriers, they said.

“An agreement to suspend the return date of the committee’s subpoenas until sometime after Labor Day would provide the time needed to negotiate and resolve any issues that might impede our efforts to reach an accommodation,” Mr. Fratto said.

Mr. Leahy said Congress needs an explanation for the White House’s operation, known as the Terrorist Surveillance Program, in order to make a fully informed decision on whether to update FISA.

A Bush administration source said that the argument over whether the domestic surveillance program has a legal basis has virtually nothing to do with the FISA reform, and that Mr. Leahy’s subpoena demands are a red herring. The clear signal from the White House, however, is that the administration is willing to accommodate the request if Democrats yield on FISA reform, a move opposed by grass-roots liberals.

Mr. Leahy said the letter from Mr. Cheney’s office is “a good first step,” but that he would “have no problem” moving his panel to vote to hold the White House in contempt of Congress if the documents under subpoena are not turned over quickly.

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