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The New York Times

Justice Dept. Will Share Interrogation Opinions

Scott Shane & David Johnston

WASHINGTON - In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.0501 09

The decision, announced at a Senate hearing where Democrats sharply criticized the administration's secrecy on legal questions, did not satisfy other members of Congress who have pushed for the documents for several years, notably Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee.

A spokesman for the Justice Department said officials were discussing whether to share part or all the opinions with Mr. Leahy's panel.

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Mr. Elwood, citing a 1980s precedent, said there was nothing new or unusual about such a view.

Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration's legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearance remain in force.

The hearing, of a subcommittee of the Senate Judiciary Committee, was called by Senator Russ Feingold, Democrat of Wisconsin. Mr. Feingold accused the administration of a "sinister trend" of promoting "secret law."

He referred to the refusal by the Justice Department to release opinions on interrogation and domestic surveillance from the Office of Legal Counsel, whose interpretations are binding on the executive branch.

"It is a basic tenet of democracy that the people have a right to know the law," Mr. Feingold said.

Mr. Elwood, deputy assistant attorney general for the Office of Legal Counsel, disputed that declining to make legal opinions public created improper "secret law." He said some legal opinions had to be kept from public release, at least for a time, because they deal with classified programs or to ensure that government lawyers can give confidential legal advice.


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J. William Leonard, the top official overseeing document classification from 2002 until January, challenged the classifying of legal analyses. Referring to a Justice Department opinion in March 2003 on interrogation that was released this year, Mr. Leonard said that it should not have been classified and that marking it "secret" showed "either profound ignorance of or deep contempt for" classification rules. Even with the release of the memorandum, several major legal opinions on interrogation remain secret. Though the Justice Department is offering to show those opinions to the Intelligence Committees, officials gave no indication that any of the opinions would be made public.

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration's contention that it can selectively modify executive orders "turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret."

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department's view that the president has the power to change executive orders.

Mr. Whitehouse said, "There's an important piece missing from that, which is not telling anybody and running a program that's completely different from the executive order."

Mr. Whitehouse, whose seat on the Intelligence Committee gives him access to classified cases, has not cited any specific instance in which President Bush secretly decided not to enforce or to change an executive order.

But in a speech on April 12 in New York, he cited "real world applications" of these theories.

Under existing law, he said, the government's right to spy on an American traveling overseas is unrestricted. The lone limit, Mr. Whitehouse said, is an executive order that the government will not spy on an American abroad unless the attorney general determines that the traveler is acting as an agent of a foreign power.

"In other words, the only thing standing between Americans traveling overseas and government wiretap is an executive order," Mr. Whitehouse said. "An order this president, under the first legal theory I cited, claims he has no legal obligation to obey."

Asked about those remarks, a spokesman for the Justice Department, Brian Roehrkasse, said the president would "generally" publicly modify or revoke an executive order before directing actions that conflicted with it.

"With respect to classified programs, however," Mr. Roehrkasse added, publicly changing an executive order might "not be in the interest of the country's national security." In such cases, he said, the Congressional Intelligence Committees or their leaders would be informed.

© 2008 The New York Times

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