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A former top national security lawyer at the Justice Department questions the Bush administration’s legal rationale for its warrantless eavesdropping program, newly released documents show.
David Kris, now the chief ethics and compliance officer at Time Warner Inc., said in a Jan. 19 e-mail that administration legal arguments put forth a month after the program was publicly disclosed had ”a slightly after-the-fact quality or feeling to them.”
Kris wrote the e-mail to an aide to Attorney General Alberto Gonzales the same day Gonzales sent a 42-page white paper to Congress.
Kris was an associate deputy attorney general from 2000 to 2003 dealing with national security issues, but there was no indication he was aware of the National Security Agency program or participated in internal deliberations about it during his government tenure.
In the documents released in Washington on Wednesday, Kris criticized the administration’s defense of the program, saying: ”Claims that FISA simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to” constitutional powers ”in violation of the statute.”
”I’m making my way through the white paper now,” Kris wrote the Gonzales aide, ”and of course it’s very professional and thorough and well written.”
Kris added, ”I kind of doubt it’s going to bring me around on the statutory arguments … but you never know, and in any event I can respect the analysis even if I don’t fully agree.”
In a Dec. 22 e-mail to the Gonzales aide, six days after The New York Times revealed the existence of the program, Kris wrote, ”It looks like you guys are leading with” congressional authorization as providing Bush the legal authority for carrying out the domestic spying and then falling back on constitutional arguments.
”If I’m reading it right, that’s an interesting choice,” Kris wrote. ”Maybe it reflects the VP’s philosophy that the best defense is a good offense.”