"I think that where these Democrats who are calling for this ought to spend their time is on what was the source of the unauthorized disclosure of this vital and critical program in the war on terrorism," White House spokesman Scott McClellan said. "I really don't think there is any basis for a special counsel. ... But the fact that this information was disclosed about the existence of this program has given the enemy some of our playbook."
In a letter released Monday, 18 House Democrats told Mr. Bush that Attorney General Alberto Gonzales should appoint a special counsel. They said the surveillance of terrorists must be done within the bounds of U.S. law, but complained that their efforts to get answers to legal and factual questions about the program have been stymied, "generally based on the feeblest of excuses."
"If the effort to prevent vigorous and appropriate investigation succeeds, we fear the inexorable conclusion will be that these executive branch agencies hold themselves above the law and accountable to no one," wrote the lawmakers, led by Rep. Zoe Lofgren, D-Calif., a member of the Judiciary and Homeland Security committees.
The lawmakers initially asked the independent watchdogs at the Justice and Defense departments to open inquiries. Both declined.
Justice's inspector general Glenn Fine said he lacked authority, and deferred to the department's Office of Professional Responsibility. That office has said it is investigating the conduct of the department's lawyers, but not the program's lawfulness.
Congress' investigative arm, the General Accountability Office, similarly declined to open a review, noting the administration would be expected to designate the necessary documents as foreign intelligence materials and limit access to them.
The Democrats see "ample precedent" for a special counsel, citing the Justice Department's appointment of U.S. attorney Patrick Fitzgerald to investigate the leak of the identity of CIA operative Valerie Plame.
After 22 months of investigation, Fitzgerald indicted the vice president's chief of staff, I. Lewis "Scooter" Libby, for allegedly lying about his role in the disclosure.
"Indeed, the allegation of a secret NSA spying program conducting warrantless domestic surveillance of U.S. persons is at least as serious" as the matter Fitzgerald investigated, the Democrats wrote.
In their six-page letter, the Democrats said the special counsel should investigate any possible violation of federal criminal law, noting that the Foreign Intelligence Surveillance Act says the monitoring of U.S. citizens and residents, without a warrant, is punishable by imprisonment.
Bush administration officials have argued the program does not fall within that law. They say Bush was exercising his constitutional authority as commander in chief when he allowed the National Security Agency to monitor, without court approval, the international calls and e-mails of people inside the U.S. when one party may be linked to terrorism.
The administration also maintains the president had the power to order the surveillance under a broad 2001 authorization to use military force in the war on terror.
The 18 lawmakers also want the special counsel to consider any crimes that may be committed to interfere with the investigation, including perjury, obstruction of justice, destruction of evidence and witness intimidation.
The request harkens back to Libby, who was not indicted specifically for leaking Plame's name, but for an alleged cover-up that included five counts of obstruction of justice, perjury and making false statements to FBI agents.