Classified Materials and Domestic Surveillance—FBI Investigation

FBI Director Robert Mueller took a moment from his tour of the FBI’s Charlotte, North Carolina field office to reiterate that the FBI “is conducting investigations similar to the one that resulted in last week’s firing of a CIA intelligence analyst who acknowledged leaking classified information.”^[1] That analyst, whose firing we discussed on Friday, turned out to be Mary McCarthy, who was nearing retirement.^[2]

The FBI’s investigation may be related to the New York Time’s report in mid-December that President Bush has authorized warrantless wiretaps on domestic-to-foreign telephone conversations. On April 6, Attorney General Alberto Gonzales hinted that there may be a number of other spying programs, including ones that tap domestic-to-domestic calls, or ones that involve warrantless physical searches of homes and offices. Before the House Judiciary Committee, Atty. Gen. Gonzales testified that his testimony before the Senate Judiciary, during which he acknowledged the existence of the domestic-to-foreign program, should not be construed to “rule out” the idea that “the president might have the legal authority to order wiretapping without a warrant on communications between Americans that occur exclusively within the United States.”^[3] Atty. Gen. Gonzales suggested that precedent would guide any such decisions, asking “What have previous commander in chiefs done?"^[4] He cited Woodrow Wilson's authorization to intercept all cables to and from Europe in World War I as support, but he stopped short of saying whether such wiretapping has been conducted.^[5]

However, when questioned about reports that some career lawyers at the Department of Justice questioned the legality of the program, Atty. Gen. Gonzales stated that that disagreement “did not relate to the program that the president disclosed to the public in his radio address in December of 2005. It is related to something else. And I can’t get into that.” ^[6]

This is seemingly in contradiction to a phone call between Atty. Gen. Gonzales and Representative Jane Harman (D-Calif.) during which, she claimed, he stated that “the administration is not conducting any warrantless domestic surveillance programs beyond the one that President Bush has acknowledged.”^[7] A DOJ spokesman, when asked for comment about Rep. Harman’s statement, stated simply that “It is inappropriate to discuss the private conversations between the attorney general and members of Congress, especially on matters of classified intelligence programs.”^[8]

---

[1] FBI Director: SUV Incident Illustrates Need for Vigilance, Associated Press (via Greensboro News-Record), Apr. 24, 2006.
[2] Id.
[3] Eric Lichtblau, Gonzales Suggests Legal Basis for Domestic Eavesdropping, N.Y. Times, Apr. 7, 2006.
[4] Id.
[5] Id.
[6] House Judiciary Committee Hearing on the Department of Justice, Washington Post, Apr. 6, 2006. (emphasis added, but in original as heard: Ari Shapiro, Gonzales Frustrates Lawmakers on Domestic Spying NPR, Apr. 6, 2006.)
[7] Charles Babington, Gonzales Denies More Extensive Domestic Spying, Washington Post, Mar. 3, 2006.
[8] Id.