Published March 25, 2006
WASHINGTON – The National Security Agency could have legally monitored ordinarily confidential communications between doctors and patients or attorneys and their clients, the Justice Department said Friday of its controversial warrantless surveillance program.
Responding to questions from Congress, the department also said that it sees no prohibition to using information collected under the NSA's program in court.
"Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution," the department said in responses to questions from lawmakers released Friday evening.
The department said that considerations, including whether classified information could be disclosed, must be weighed.
In classified court filings, the Justice Department has responded to questions about whether information from the government's warrantless surveillance program was used to prosecute terror suspects. Defense attorneys are hoping to use that information to challenge the cases against their clients.
Since the program was disclosed in December, some skeptical lawmakers have investigated the Bush administration's legal footing, raising questions including whether the program could capture doctor-patient and attorney-client communications. Such communications normally receive special legal protections.
"Although the program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception," the department said.
The department said the same general criteria for the surveillance program would also apply to doctors' and lawyers' calls: one party must be outside the United States and there must be reason to believe one party is linked to Al Qaeda. The department's written response also said that these communications aren't specifically targeted and safeguards are in place to protect privacy rights.
Michigan Rep. John Conyers, the House Judiciary Committee's top Democrat, complained about the department's evasiveness in answers to questions from the House and Senate Judiciary Committees, submitted to Attorney General Alberto Gonzales. All but two of 45 answers to the House Judiciary Democrats were vague and unresponsive, Conyers said.
He found the response regarding doctor-patient and attorney-client privilege particularly troublesome. More generally, the "need for oversight is especially glaring," he said in a statement.
Justice Department spokesman Brian Roehrkasse said the department "has been extremely forthcoming and clear about the administration's legal analysis through multiple briefings with Congress, three hearings with the Attorney General, multiple letters to Congress, a 42-page white paper and dozens of questions for the record."
Responding in 75 typed pages, the department clarified some points in the three-month-old debate over the program. But it also left many questions unanswered, citing the need for national security.
The House Democrats asked if any other president has authorized wiretaps without court warrants since the passage of the 1978 Foreign Intelligence Surveillance Act, which governs intelligence collection inside the United States.
Choosing its words carefully, the department said, "if the question is limited to 'electronic surveillance' ... we are unaware of such authorizations."
The department also made clear that the program — as confirmed by President Bush — has never been suspended since it began in October 2001. That would include 2004, when reports indicate serious doubts about the program were raised by Justice Department officials.
But the department refused to discuss, or even confirm, a meeting in 2004 at then-Attorney General John Ashcroft's hospital bed. News reports indicated that White House Chief of Staff Andy Card and Gonzales, then White House counsel, needed his help to quell dissent about the program.
Lawmakers also asked whether federal judges on a secretive intelligence court objected to the program and, if so, how the administration responded.
The department wouldn't answer, citing the need to protect classified information. "We assure you, however, that the department keeps the Foreign Intelligence Surveillance Court fully informed regarding information that is relevant to the FISA process," the response said.
The department also avoided questions on whether the administration believes it is legal to wiretap purely domestic calls without a warrant, when Al Qaeda activity is suspected. The department wouldn't say specifically that it hasn't been done.
"Interception of the content of domestic communications would present a different legal question," the department said.