From the New York Times:
The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush’s domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.
The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.
But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in the department saw any concrete limits to the president’s powers in fighting terrorism.
The first Justice Department opinion is thought to have been written in late 2001 or early 2002 by John Yoo, a strong proponent of expanded presidential powers in wartime. The second opinion, officials said, was drafted by Jack Goldsmith, another senior department official who later left to teach at Harvard. It came in 2004 at a time some senior officials at the Justice Department were voicing concerns about the program’s legal foundation and refusing to sign off on its reauthorization.
Those concerns led in part to the suspension of the surveillance program for several months and also appear to have led Mr. Goldsmith and other Justice Department lawyers to revisit the question of its legal underpinnings in order to satisfy those concerns.
Members of the Judiciary Committee have sought access to the memorandums, officials said. Some Democrats speculate that the classified memos may contain far-reaching and potentially explosive legal theories similar to those advocated by Mr. Yoo and others, and later disavowed by the Justice Department, regarding policies on torture.
In a letter sent Wednesday to Mr. Gonzales, Mrs. Feinstein said the legal opinions and other internal documents were needed for Congress to assess whether the president “has the inherent authority to authorize this surveillance.”
Lest you think that this is just the Dems trying to play gotcha with the Justice Department, check out this article in Newsweek, of all places, about the internal Justice Department battles between the proponents of the absolute power of the executive and those who believe there should be, y’know, limits of what the president can do. Turns out that there are conservatives who actually believe things like that.