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Legal Blow For Bush Spy Program

A federal judge dealt a setback to the Bush administration on its warrantless surveillance program, ordering the Justice Department on Thursday to release documents about the highly classified effort within 20 days or compile a list of what it is withholding.

U.S. District Judge Henry Kennedy said a private group will suffer irreparable harm if the documents it has been seeking since December are not processed promptly under the Freedom of Information Act.

The Justice Department failed to meet the time restraints under FOIA and failed to make a case that it was impractical to deal quickly with the request by the Electronic Privacy Information Center.

Justice Department spokesman Charles Miller said no determination has been made as to what the government's next step will be.

At a court hearing a week ago, Justice Department lawyer Rupa Bhattacharyya said the government would respond starting March 3, but she said she had no information on when the process might be completed.

Timing will depend on complexity, "and in this case there are a lot of complexities," Bhattacharyya said.

Judge Kennedy wrote that "courts have the authority to impose concrete deadlines on agencies that delay the processing of requests meriting expedition."

Routine FOIA requests are to be handled within 20 days while expedited requests have no set time limit under the law, prompting the Justice Department to take the position that the amount of time for expedited requests could be longer than that for the routine 20-day handling.

"Congress could not have intended to create the absurd situation" enabling the government to unilaterally exceed the standard 20-day period, Kennedy wrote.

CBS News legal analyst Andrew Cohen says that while this is a victory for the plaintiffs, it is by no means a major ruling that will instantly lift the lid of secrecy from the spying program.

"The judge didn't order the feds to suddenly release all sorts of classified or secret information. All the judge did was to tell the Justice Department that it has to speed up its response to a request for information about the National Security Agency program," said Cohen. "And the information that initially will be released will be very unspecific. The big battles are yet to come over how much of this stuff eventually is made public."

In a related development, the Justice Department said Thursday that it has begun an internal inquiry into the conduct of its lawyers who examined the NSA's eavesdropping program.

The investigation is being conducted by the Office of Professional Responsibility, or OPR, which reviews allegations of misconduct within the law enforcement agency.

Marshall Jarrett, the office's counsel, acknowledged the investigation in a letter to Rep. Maurice Hinchey. Jarrett's letter did not specify which of the agency's actions or employees are being examined.

"You asked this office to investigate the Department of Justice's role in authorizing, approving and auditing certain surveillance activities of the National Security Agency, and whether such activities are permissible under existing law. For your information, we have initiated an investigation," Jarrett wrote.

Hinchey is one of a few dozen Democratic lawmakers who have been highly critical of the eavesdropping program first revealed in December.

"We're very happy that the OPR is doing it, because it seems on the surface certain illegal actions may have taken place," Hinchey, one of Congress' most outspoken critics of President Bush, said Wednesday.

Justice Department spokesman Brian Roehrkasse said the office routinely looks into issues of this kind.

"They will not be making a determination on the lawfulness on the NSA program, but rather will determine whether the department's lawyers complied with their professional obligations in connection with examining this program," Roehrkasse said.

Democrats are seeking a wide-ranging examination of all domestic spying programs as the committee prepared to discuss the matter Thursday in a closed session. The Intelligence chairman, Republican Sen. Pat Roberts, has been generally less critical of the spying program than many other senators.

"Al Qaeda knows that we eavesdrop and wiretap," said Sen. Patrick Leahy, top Democrat on the Senate Judiciary Committee. "It is the American people who are surprised and deceived by the president's program of secret surveillance on them without a judge's approval."

Mr. Bush's decision to authorize the largest U.S. spy agency to monitor people inside the United States, without warrants, has generated a flurry of questions about the program's legal justification.

The Bush administration says the NSA's activities were narrowly targeted to intercept international calls and e-mails of Americans and others inside the U.S. with suspected ties to the al Qaeda network.

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