Justice Dept. Probes Leak of NSA Wiretap Program

Alex Chadwick talks with Newsweek Washington, D.C., bureau chief Daniel Klaidman about recent revelations about a secret eavesdropping program by the National Security Agency (NSA), authorized by President Bush to circumvent court oversight on domestic spying. They also discuss whether the U.S. Department of Justice investigation into the media leak about the program will affect other reporting about intelligence matters.

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ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

If you missed it, there are very interesting new details about President Bush's secret eavesdropping without warrants program that was run out of the National Security Agency. Both Newsweek and The New York Times report there was a real battle between the White House and the Justice Department over whether the operation was legal. Also this on Friday: The Justice Department announced an investigation into the original leak of the program's existence. We're joined by the Washington bureau chief for Newsweek; he's Daniel Klaidman. He's written on the NSA program along with Newsweek's Evan Thomas.

Dan Klaidman, welcome to the program, and tell this story that's in your story in Newsweek magazine about John Ashcroft and the man who was running the Justice Department when the administration had questions about this.

Mr. DANIEL KLAIDMAN (Newsweek): Well, sometime in early 2004, Justice Department officials had become quite concerned about the program and about its legality. And it is possible that the program had been partially suspended or, another version of the story is that the White House needed recertification and according to its procedures had to go to the Justice Department to get that. At that time, Attorney General Ashcroft was in the hospital with a rare and very painful pancreatic disease. James Comey was his number two, the deputy attorney general, and Comey was particularly concerned, we understand from our sources, and basically said no to the White House, said that he would not reauthorize this program, would not give them what they needed. Yes, go ahead.

CHADWICK: This is the guy who's running the Justice Department in the absence of Attorney General John Ashcroft.

Mr. KLAIDMAN: He is effectively the...

CHADWICK: Yeah.

Mr. KLAIDMAN: ...acting attorney general. And so...

CHADWICK: OK.

Mr. KLAIDMAN: ...he is the one that the White House goes to. And so this sets up this quite dramatic scene where Andy Card, the White House chief of staff, and Alberto Gonzales, who was then the White House counsel, actually go to the hospital to John Ashcroft's bedside the get the approval that they're looking for. Ashcroft, we're told, backs up his deputy, James Comey, and the White House doesn't get the recertification, doesn't get the approval.

CHADWICK: But what you're describing is an actual hospital bedside scene with two very senior White House aides pleading with the attorney general to overrule his deputy on this, and the attorney general says no.

Mr. KLAIDMAN: That's right, and it's quite extraordinary. You know, there is a popular perception that John Ashcroft was...

CHADWICK: Would do any...

Mr. KLAIDMAN: ...you know, quite conservative...

CHADWICK: Yeah.

Mr. KLAIDMAN: ...was--would do anything and would certainly be willing to push or--the boundaries of the law in the fight against al-Qaeda. In this particular case, as we understand it, he backed up his deputy and the institutional concerns of his Justice Department.

CHADWICK: Hold on. Here's Mr. Bush speaking--this was a few weeks ago--about the NSA program, about who reviews it.

President GEORGE W. BUSH: The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president.

CHADWICK: Dan, the real question is, if the attorney general said no to this for several months during 2004 when this program was under way, did the White House stop the program or did they just ignore what the attorney general had said and keep going?

Mr. KLAIDMAN: Well, what we think happened here is that the program was suspended or at least suspended in part for a period of several months. And in that period, during this bureaucratic battle, there were adjustments made to the program so that the Justice Department officials who had raised concerns in the first place would be satisfied that what they were doing was more in line with the law. And so what were those adjustments? What were those modifications? Very hard to know specifically, but we think that it had to do with questions about probable cause, trying to approximate the standards that the special intelligence court which was being bypassed had used. In other words, that you could only listen to people's phone conversations or other electronic communications if there was probable cause to believe that the person was a terrorist or a foreign agent involved in criminal activity.

CHADWICK: Dan, what about this Justice Department investigation now of this leak of the story that first appeared in The New York Times, what, almost a month ago now?

Mr. KLAIDMAN: Well, look, I mean, there's a lot of concern among journalists like myself that these kinds of investigations will have a chilling effect. It already has, I know, because I've been reporting this story and it's extremely difficult to get people to talk about this program. I will, however, say that sometimes what happens in these kinds of cases is there is a chilling effect for a lot of people who won't talk because they're afraid of becoming investigated. On the other hand, because people came forward and talked to The New York Times and this became a public controversy, sometimes it emboldens small numbers of people to come forward and do what they think is the right thing, which is to expose a program that they think may be illegal.

So it's often difficult to predict exactly how these things will play out, but I'm hopeful that people will continue to come forward when they're whistle-blowers and they think they have important stories to tell that serves the public interest.

CHADWICK: You know, Dan, I think I'm hearing you say there'll be something else to read in the magazine next week under your byline.

Mr. KLAIDMAN: Well, let's hope so. We'll see. Stay tuned.

CHADWICK: Dan Klaidman, Newsweek Washington bureau chief.

Thank you, Dan.

Mr. KLAIDMAN: Thank you.

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