Subpoena Watch: Will the White House Answer Congress' Demands?

In June the Senate issued subpoenas to the White House, Vice President and the Justice Department for documents related to warrantless surveillance.

Update: October 16, 2007 - Today, after months of ignoring congressional subpoenas, the Bush administration submitted selected documents on domestic spying to the Senate Intelligence Committee. Even though an entirely different Senate Committee — the Senate Judiciary Committee — still has outstanding subpoenas for a full and public airing of that information. The Judiciary Committee has been waiting for months, watching deadline after deadline pass as the administration, like a deadbeat tenant, keeps promising results and never delivering. We're not sure exactly what documents were given to the Intelligence Committee, but we definitely know they were used to broker a deal on immunity for the telecoms who participated in warrantless and illegal wiretapping. Stay tuned as we watch this fight unfold in the Senate and wait for the administration to finally come clean. (Learn more >>)

The ACLU is calling on Leahy and Congress to hold the White House in contempt when business resumes in September. Meanwhile, the Foreign Intelligence Surveillance Court has told the White House to reply to the ACLU's unprecedented filing requesting secret court orders discussing the scope of the government's authority to engage in secret wiretapping of Americans. These documents are key to the debate over the Bush NSA spy program and the recent cave-in vote by Congress that gutted the power of the FISA court. The government has until August 31 to reply. Learn more about the subpoenas >>

WHO?	WHY?	Subpoena Issued?	Compliance?
The White House	Documents to request: Executive branch memos and internal documents including emails from 2001 to 2007 discussing the legality of warrantless surveillance; Applications, legal briefs and orders that support the current authorization by FISA for unknown surveillance programs; Presidential and Department of Justice "certifications" for the program. Any and all agreements between the government and telecommunications companies regarding their role in the program, including any indemnification agreements.
The Vice President's Office
Department of Justice
Vice President Dick Cheney	According to press reports, helped strong arm the Justice Department into sanctioning illegal wiretapping, even though its top lawyers were saying it was in fact illegal.
Attorney General Alberto Gonzales	According to others' statements, supported illegal spying while in the WH and personally signed off on spying on Americans without a warrant as attorney general. Completely abdicated his responsibility as our country's top lawyer who swore to uphold the Constitution.
FBI Director Mueller	Reportedly threatened to resign in 2004 because of yet unknown complaints about the spying program's legality. Witness to White House operatives trying to force a semiconscious John Ashcroft to sign off on an illegal program.
NSA Director Hayden	Head of the NSA and ran the illegal spying program until April 2005. Can provide details about how the program was originally created and how it operated for most of its existence.
Former White House Chief of Staff Andrew Card	Reputed to have tried to force a semiconscious John Ashcroft to sign off on an illegal program. Can testify to the White House's involvement in pushing this illegal program, even in the face of legal advice that the program was flawed.
Former United States Solicitor General Theodore B. Olson	Resigned from post as Solicitor General just days after the White House tried to force a gravely ill Ashcroft into approving a program he thought was illegal. Could speak to the legalities of the program from its inception in 2001 until March of 2004.
Former Department of Justice Attorney John Yoo	According to press accounts, one of the authors of the untenable legal theories that sanctioned the President's criminal and unconstitutional program.
Former Deputy Assistant Attorney General Patrick Philbin	While Deputy Assistant Attorney General, reportedly opposed the illegal program. Was later punished by withholding promotions.
Former Deputy Attorney General James Comey	Already testified once about the March fiasco where the White House tried to force Ashcroft to sign off on the illegal program. Should be brought back to talk more about how the program was originally created, and then changed in 2004.
CEOS of the Telecoms	Need to testify before Congress about their role in government surveillance of Americans.

It's been a year and a half since we first found out that our own government has been tapping our phones and reading our emails. In that year and a half, the Senate Judiciary Committee has asked the Bush Administration nine times for information about the NSA's illegal spying.

• After being denied an extension, the Bush administration has let another subpoena deadline pass on August 20. Judiciary Committee Chairman Senator Patrick Leahy flatly refused the White House any more time and told reporters that there is "no question" the administration is in contempt. According to Leahy, this is the third deadline missed by the administration, despite its agreement to provide materials by August 1, a charge the White House disputes.
• On August 8, in a letter to White House Counsel Fred Fielding, Senator Patrick Leahy (D-VT) asked that internal documents relating to the administration's warrantless wiretapping program be turned over to the committee by August 20. Unfortunately, both the House and the Senate passed sweeping legislation to expand the very law the administration circumvented with its domestic spying – the Foreign Intelligence Surveillance Act (FISA). The legislation, pushed through Congress at the behest of the White House and subject to a six-month sunset provision, essentially authorized the very program that Senator Leahy and the committee are seeking information about.
• June 27, 2007, the committee asked for the tenth time and backed up the request using its subpoena power to compel an answer.
• On June 28, a federal court refused to compel the release of spying-related documents in response to a New York Times Freedom of Information Act request.
• Then, on July 6, the Sixth Circuit dismissed the ACLU's case against the NSA, supporting a government appeal to an earlier ruling that the warrantless wiretapping program is unconstitutional, criminal and must be stopped.
• One day before the July 18 deadline, the White House asked for an extension to come up with the documents, claiming it would not have been able to "come close to completing" a document review by the initial deadline. Senator Leahy granted the request for an extension saying, "I hope the White House uses this additional time constructively to finish gathering the relevant information and then works with us in good faith on ways to provide it so that we will have the information we need to conduct effective oversight at long last."

The administration continues to put up roadblocks between its unconstitutional program and the American people. It is now do-or-die time for the separation of powers. Congress is facing a historic moment when it can fight for its rightful place in our Constitutional structure or accept the president's continued and sweeping claims of unquestionable authority and just get swept under the rug.

The question is: So what is Congress going to do?

> News: ACLU Calls Hand Over of Spy Documents Self-Serving
> News: Selective Document Release Does Not Justify Telecom Immunity, ACLU Says
> News: ACLU Encouraged By Steps to Investigate Telecoms’ Role in Spying
> News: ACLU Urges Senate to Move Ahead With Contempt Charges, Rejects Claims of Executive Privilege
> Take Action: Urge Bush and Cheney to Cooperate With Subpoenas
> Sign Up: Receive e-mail updates from the ACLU
> Blog: Anthony D. Romero on the Summer of Subpoenas (HuffingtonPost)
> Myths & Facts: The Foreign Intelligence Surveillance Act
> Learn More: ACLU v. NSA - The Challenge to Illegal Government Spying

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