Current and former government officials said they could think of several scenarios in which a president might consider ordering the killing of a terror suspect inside the United States.

One former official noted that before Flight 93 crashed in Pennsylvania, top administration officials weighed shooting down the aircraft if it got too close to Washington, D.C.

What if the president had strong evidence that a Qaeda suspect was holed up with a dirty bomb and was about to attack? University of Chicago law professor Cass Sunstein says the post-9/11 congressional resolution authorizing the use of military force against Al Qaeda empowered the president to kill 9/11 perpetrators, or people who assisted their plot, whether they were overseas or inside the United States. On the other hand, Sunstein says, the president would be on less solid legal ground were he to order the killing of a terror suspect in the United States who was not actively preparing an attack.

A Justice Department official, who asked not to be ID'd because of the sensitive subject, said Bradbury's remarks were made during an "academic discussion" of theoretical contingencies. In real life, the official said, the highest priority of those hunting a terrorist on U.S. soil would be to capture that person alive and interrogate him. A

t a public intel-committee hearing, Feinstein was told by intel czar John Negroponte and FBI chief Robert Mueller that they were unaware of any case in which a U.S. agency was authorized to kill a Qaeda-linked person on U.S. soil.

Tasia Scolinos, a Justice Department spokeswoman, told NEWSWEEK: "Mr. Bradbury's meeting was an informal, off-the-record briefing about the legal analysis behind the president's terrorist-surveillance program. He was not presenting the legal views of the Justice Department on hypothetical scenarios outside of the terrorist-surveillance program."

A Web site also will be used to solicit contributions. Comstock said it will be up in the next few weeks.

The fund's existence was first reported by The New York Times on Friday.

Comstock said the fund does not have to reveal the identities of its donors under law. But she described the donors as Libby's ``friends or friends of friends, colleagues at various jobs he's had over the years and just people who admire his service'' to government.

The fund's steering committee includes a few Democrats and several Republicans. Former Ambassador Mel Sembler is its chairman.

The other members include two former Republican presidential candidates, Jack Kemp and Steve Forbes; three former Republican senators, Fred Thompson of Tennessee, Spencer Abraham of Michigan and Alan K. Simpson of Wyoming; and former CIA Director James Woolsey.

Libby's trial on perjury and obstruction of justice charges is set for January 2007.

_Al-Qaida camp training included use of AK-47, M-16 and Uzi machine guns; use of explosives such as C-4 and dynamite; and camouflage and clandestine surveillance techniques. Early duties included guarding a Taliban outpost north of Kabul armed with an AK-47.

_Trained with another operative for plot to blow up apartment buildings in United States by filling individual apartments with natural gas and detonating them. Mission initially abandoned because Padilla and the other operative had disagreements.

_In November 2001, helped dig out the body of al-Qaida senior planner Mohammed Atef from a safe house in Afghanistan that had been bombed by U.S. forces and where Padilla had previously stayed.

_In March 2002, proposed detonating a homemade nuclear device or possibly a radioactive "dirty bomb" in the United States to senior al-Qaida leaders, including Sept. 11 attacks mastermind Khalid Shaikh Mohammed. KSM was skeptical and suggested they return instead to the apartment explosion plan.

_KSM hosted a farewell dinner in Pakistan the night before Padilla was to depart for the United States.

_Left for the United States in April 2002 with more than $10,000 in al-Qaida money and plans to implement the apartment proposal. Plans called for explosions in two or three apartment buildings possibly in New York, Florida or Washington, D.C.

Specter, R-Pa., said he might consider subpoenas for administration documents that would detail its legal justification for the program.

"The president could've taken this there and lay it on the line," Specter said, citing the special court set up under the Foreign Intelligence Surveillance Act of 1978.

"That court has an outstanding record of not leaking. They would be pre-eminently well-qualified to evaluate this program and say it's OK or not OK," Specter told NBC's "Meet the Press."

Under the NSA program put in place after the attacks of Sept. 11, 2001, the government has eavesdropped, without seeking warrants, on international phone calls and e-mails of people within the United States who are deemed to be a terrorism risk.

The administration has defended Bush's decision to bypass the FISA law, saying it is too cumbersome to deal with in a post-Sept. 11 world of heightened security threats. It also said Bush had authority as commander in chief and under a 2001 congressional resolution authorizing force in the fight against terrorism.

"The president's authority to take military action — including the use of communications intelligence targeted at the enemy — does not come merely from his constitutional powers. It comes directly from Congress as well," in that post-Sept. 11 resolution, according to Gonzales' prepared testimony for the hearing. The Associated Press on Saturday obtained a copy of his scheduled remarks.

Specter was skeptical.

"I think that contention is very strained and unrealistic. The authorization for use of force never mentions electronic surveillance," Specter said.

In response to written questions submitted to him by Specter before the hearing, Gonzales gives an explanation why the administration bypassed the FISA court: "The delay inherent in the FISA process is incompatible with the narrow purpose of this early warning system."

Specter, however, said that response "was not entirely responsive. ... His answer wasn't really clear." The senator said there is no reason why the administration could not have consulted with the spy court or Congress, who could have changed the law if it was too cumbersome.

But Gen. Michael Hayden, the No. 2 intelligence official in the government, said the FISA process "doesn't give us the speed and agility to do what this program is designed to do."

The program's intent is to "detect and prevent attacks. This is not about long-term surveillance to gather reams of intelligence against a stable and a fixed target," Hayden said on "Fox News Sunday."

Specter's committee has asked the administration to Justice Department documents detailing the legal justification for the NSA program.

Asked about the possibility the committee might subpoena the administration for the material, Specter said he first wanted to hear from Gonzales.

"If we come to it and need it, I'll be open about it," Specter said. He added, "If the necessity arises, I won't be timid."

Both in 1975 and today, officials defending the N.S.A. operation said it had prevented terrorist attacks. And Dick Cheney, who as vice president has overseen secret briefings for selected members of Congress on the N.S.A. program, was in the White House then, too, serving as a deputy to President Gerald R. Ford before succeeding Donald H. Rumsfeld as chief of staff.

The recent debate about the security agency "does bring back a lot of memories," said Walter F. Mondale, the former vice president, who served on the Church Committee as a Democratic senator from Minnesota. "For those of us who went through it all back then, there's disappointment and even anger that we're back where we started from."

Later, after becoming vice president under Jimmy Carter, Mr. Mondale helped usher a into law a major committee recommendation — that no eavesdropping on American soil take place without a warrant. That became the basis of the Foreign Intelligence Surveillance Act of 1978, the law that critics say is being violated by President Bush's decision to authorize eavesdropping without court warrants on people in the United States linked to Al Qaeda.

Bush administration officials deny that they have violated the 1978 statute, noting that apart from the special eavesdropping program, they are going to the FISA court for warrants more often than any previous administration.

But the officials say that going to the foreign intelligence court is impractical in some urgent situations when intercepting phone calls or e-mail messages might prevent a terrorist attack. They say the eavesdropping program was authorized by presidential order and vetted by lawyers both at the agency and at the Justice Department.

Asked at a Jan. 26 news conference about a comparison with President Richard M. Nixon's actions in the 1970's, President Bush said that past presidents had relied on "the same authority I've had" in order to "use technology to protect the American people."

He added: "There will be a legal debate about whether or not I have the authority to do this. I'm absolutely convinced I do."

Since The New York Times first disclosed the eavesdropping program in December, some who witnessed the earlier era have followed the news with an eerie feeling that events are being replayed.

"You feel like you're in an echo chamber, because the comments on both sides are so similar to 1975," said Loch K. Johnson, a historian of intelligence who served then as an aide to Mr. Church. "There are a lot of lessons from those times that are relevant today."

To read through the documents of the earlier era is to spot many themes from the current controversy: the cooperation of major telecommunications companies with the N.S.A.; the challenges of fast-changing communications technologies (then the expansion of satellite communications, now the Internet explosion); the legal rationale as laid out in detail by the attorney general (then Edward H. Levi, now Alberto R. Gonzales, who is to testify Monday before the Senate Judiciary Committee). Government documents from the 1970's eavesdropping controversy were posted over the weekend on the Web site of the National Security Archive, a research center at George Washington University.

The N.S.A. revelations of 30 years ago were unearthed simultaneously by the Church Committee, two House committees and the press, focusing on two programs code-named Minaret and Shamrock.

Minaret was a watch list kept between 1967 and 1973 of Americans whose international communications — phone calls and telegrams in and out of the country — were collected by the security agency

The names were mostly submitted to the N.S.A. by other agencies because of targets' suspected involvement in four kinds of activities: terrorism; drug trafficking; threats to the president; and civil disturbances with "possible foreign support or influence," as Lt. Gen. Lew Allen Jr., then the N.S.A. director, told the Church Committee. That program ended up targeting some Vietnam War protesters and civil rights activists.

Shamrock began in 1947, growing out of a World War II program for government censorship of international telegrams. Until the program was shut down in 1975, the three major international carriers, RCA Global, ITT World Communications and Western Union International, delivered copies of messages sent each day to the N.S.A.

Senator Church emphasized to General Allen that he did not question the value of using electronic spying to catch terrorists, drug dealers or potential assassins, only "the lack of adequate legal basis for some of this activity."

Mr. Levi, the attorney general, acknowledged that the law on such spying was "ill-defined" but said courts had upheld the president's power to order surveillance for foreign intelligence without warrants.

Two Republican senators, Barry M. Goldwater of Arizona and John G. Tower of Texas, fought unsuccessfully against open hearings on sensitive N.S.A. matters, particularly the three companies' cooperation. "I must state my firm opposition to this unilateral release of classified information," Mr. Tower said at one point.

Frederick A. O. Schwarz Jr., who served as the committee's chief counsel, recalled in an interview, "The question of how to handle N.S.A. was more divisive than anything else we did," including extensive hearings on C.I.A. and F.B.I. abuses.

But in the end, the committee reached a broad consensus on most of its findings, including on the critical recommendation of banning eavesdropping in the United States without warrants, Mr. Schwarz said.

After the trauma of public hearings and front-page headlines, intelligence officials, too, were ready for new, clear rules. Adm. Bobby R. Inman, who testified before the Church Committee as director of naval intelligence and became N.S.A. director in 1977, said he worked actively for passage the next year of the FISA law, which required approval of a special court for eavesdropping on American soil.

"I became convinced that for almost anything the country needed to do, you could get legislation to put it on a solid foundation," Admiral Inman said. "There was the comfort of going out and saying in speeches, 'We don't target U.S. citizens, and what we do is authorized by a court.' "

But not all agreed, then or now, that the president's powers over foreign intelligence should be overseen by judges. While Vice President Cheney has not explicitly criticized the FISA statute, he has often said that laws passed in reaction to Vietnam and Watergate unjustifiably weakened the presidency.

"Over the years there had been an erosion of presidential power and authority," Mr. Cheney told reporters on Dec. 20 when asked about the eavesdropping program. "The president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy. That's my personal view."

Former Senator Gary W. Hart, a Colorado Democrat who served on the Church Committee, believes views such as Mr. Cheney's have set the clock back 30 years.

"What we're experiencing now, in my judgment, is a repeat of the Nixon years," Mr. Hart said. "Then it was justified by civil unrest and the Vietnam war. Now it's terrorism and the Iraq war."

But on Friday, Senator Pat Roberts of Kansas, the current chairman of the Senate Intelligence Committee, strongly defended the eavesdropping program and dismissed any comparison to the Nixon era.

Writing to Howard Dean, the Democratic Party chairman, who had compared the current controversy to "the abuse of power during the dark days of President Nixon," Mr. Roberts declared, "Any suggestion that a program designed to track the movement, locations, plans or intentions of our enemy particularly those that have infiltrated our borders is equivalent to abusive domestic surveillance of the past is ludicrous."

He added: "When President Richard Nixon used warrantless wiretaps, they were not directed at enemies that had attacked the United States and killed thousands of Americans."

Washington, D.C. - Despite objections from then-Secretary of Defense Donald Rumsfeld and then-CIA director George H. W. Bush, President Gerald Ford came down on the side of a proposed federal law to govern wiretapping in 1976 instead of relying on the "inherent" authority of the President because the "pros" outweighed the "cons," according to internal White House documents obtained through the Freedom of Information Act and posted on the Web today by the National Security Archive at George Washington University.

White House counsel Philip Buchen described a Situation Room meeting on March 12, 1976 with Rumsfeld, Secretary of State Henry Kissinger, Bush, national security adviser Brent Scowcroft, and attorney general Edward Levi (notably absent was White House chief of staff Richard Cheney) in which Buchen's and Levi's outline of the advantages of a wiretapping law reduced the "adamant opposition" to neutrality, allowing Levi to testify before Congress in favor of a wiretapping statute on March 29, 1976.

Buchen's talking points said the proposed law (ultimately enacted as the Foreign Intelligence Surveillance Act of 1978, or FISA) "avoids likelihood that … courts will eventually decide a warrant is required," "eliminates question of validity of evidence obtained," "protects cooperating communications carriers," and would not "materially inhibit surveillance of these kinds of targets."

On the "cons" side of his talking points, Buchen described exactly the arguments against such a law that the Bush administration has now adopted as the basis for its warrantless wiretapping: "requires resort to the judiciary for exercise of an inherent Executive power" and "could result in troublesome delays or even a denial of authority in particular cases."

"Yogi Berra was right, the current wiretapping debate is déjà vu all over again, except that President Bush has come down on the con side against the law," remarked Thomas Blanton, director of the National Security Archive.

Today's posting also includes the TOP SECRET Justice Department reports in June 1976 and March 1977 on the potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973). Justice released these reports to author James Bamford under the Freedom of Information Act in the late 1970s, but in 1981, the NSA persuaded Justice to threaten Bamford with prosecution for "possession of classified information," a threat that helped Bamford's book The Puzzle Palace become a best-seller.

The Justice Department in the reports ultimately recommended against prosecution, concluding that "If the intelligence agencies possessed too much discretionary authority with too little accountability, that would seem to be a 35-year failing of Presidents and the Congress rather than the agencies" (p. 171, 30 June 1976).

"Federal employees who are carrying out President Bush's warrantless wiretapping will be especially interested in the Justice Department's 1976 assessment of whether such wiretapping makes them criminally liable," commented Blanton. "One of the main reasons the Ford administration supported having a law that governed wiretapping was that such a law would protect government officials and the telecom companies as long as they followed the law."

The Archive's posting, compiled by senior fellow Dr. Jeffrey Richelson (author of the forthcoming book, Spying on the Bomb), includes key historic documents brought to light by the Church Committee investigations of intelligence abuses, and a series of National Security Agency documents from the 1990s released under the Freedom of Information Act that describe the limits imposed by FISA and the Fourth Amendment on surveilling U.S. persons.

The posting also includes two important studies by the now-defunct Office of Technology Assessment in 1985 and 1995 on the challenges of electronic surveillance and civil liberties in a digital age, as well as a wide range of key documents from the current wiretapping debate, as featured on the www.cnss.org/fisa web site (complete legislative history of the FISA), the www.fas.org web site (the Project on Government Secrecy has published the relevant Congressional Research Service studies, among other important documents), and www.epic.org which published the FBI's 2002 guide, "What do I have to do to get a FISA?"

In case anyone's forgotten, on July 14, 2003, eight days after former Ambassador Joseph Wilson in an op-ed in the New York Times publicly questioned Bush's claim that Iraq had tried to acquire "yellowcake" uranium in Africa, columnist Robert Novak wrote that "two senior administration officials" had told him the trip to Niger, which Wilson referenced in that piece, had been arranged by his wife Valerie, whom the officials described as a CIA operative assigned to investigate matters involving weapons of mass destruction.

It is now undisputed that Karl Rove spoke with at least two reporters about Valerie Wilson before Novak's now infamous article appeared: Novak himself (whom Rove has known for 30 years) and Time magazine's Matthew Cooper. Some details of the discussion with Cooper are in dispute, but there's no question that the two men discussed Valerie Wilson's identity as a CIA agent and the administration's claim that she had arranged her husband's trip to Niger. After the conversation, Rove sent an e-mail about it to then Deputy National Security Adviser Stephen Hadley. Rove's aide Susan Ralston has reportedly testified that Rove told her not to log in the phone call, although that was the usual office procedure. On July 17, Cooper wrote an article in which he described conversations with two government officials who claimed Wilson's wife was a CIA agent and had arranged Wilson's trip to Africa. Cooper questioned whether the administration was declaring war on Wilson.

Between July 14 and October 8, when Rove was interviewed by the FBI, the Bush administration held approximately 30 press briefings in which the leak and/or the Iraq-Niger uranium allegations were discussed. There were hundreds of news articles and repeated calls for an investigation by congressmen, columnists, and the CIA.

By mid-September, Karl Rove was increasingly being named as one of the "two senior administration officials" who blew Wilson's cover and Bush's press officer Scott McClellan was facing ever more insistent questions about Rove's involvement. On September 16, McClellan said that "it was ridiculous" to suggest Rove was the leaker. On the morning of September 29, McClellan announced that "the President knows Rove is not involved." From that date to October 8, when Rove was interviewed, Bush and McClellan were specifically questioned about Rove's possible role on ten separate occasions. On October 7, Rove and other White House staffers were required to provide investigators with all documents relating to any contacts they had had with reporters about Joseph Wilson, his trip to Niger, or his wife, Valerie Wilson.

As has now been widely reported, when Karl Rove spoke to FBI agents, he specifically told them that he had not spoken to any reporters about Joseph Wilson's wife before Novak's article appeared.

Given the almost seamless press coverage of the leak during the preceding three months, the time and effort that the White House was devoting to the issue, as well as the intensifying focus on whether he himself had leaked the information, it is impossible to believe that, on October 8, Karl Rove -- known for his brilliance, attention to detail, and legendary memory -- did not remember those two conversations with reporters about Valerie Wilson. If Rove told the FBI agents otherwise, it was surely a deliberate lie.

According to reports, Rove then added that he had first heard about Valerie Wilson from a reporter, though he did not remember which reporter or when he heard it. He also said that he had enlisted the aid of the Republican National Committee and conservative news agencies among other groups to spread disparaging information about Joseph Wilson and his wife, but only after Novak's article appeared.

Rove's elaboration not only compounded his initial lie but also illuminated the world of politics that he has been incapable of leaving behind -- a world that collides head-on with the one Patrick Fitzgerald inhabits, where politics have no place and where laws, and the highest standards of public service, prevail.

Despite his measured words, Fitzgerald revealed much about his worldview in the press conference in which he announced Libby's indictment. He said that the investigation was serious because the disclosure of classified information about a CIA officer could jeopardize national security. But equally serious -- and he repeated this more than once -- was the betrayal of government employees by their own officials. Anyone who has worked as a federal prosecutor for two decades, as has Fitzgerald, has also worked closely, often late and long hours, with law enforcement agents, so it is not surprising perhaps that when asked about the damage caused by the leak, Fitzgerald offered the following:



"I can say that for the people who work at the CIA and work at other places, they have to expect that when they do their jobs that classified information will be protected. And they have to expect that when they do their job, that information about whether or not they are affiliated with the CIA will be protected. And they run a risk when they work for the CIA that something bad could happen to them, but they have to make sure that they don't run the risk that something bad is going to happen to them from something done by their own fellow employees."



Over and over again, in that same press conference, Fitzgerald demonstrated his belief that if you sign onto a system that has certain rules, you have to follow those rules even if it might be personally advantageous to break them. Those who tuned in saw reporters repeatedly ask him about information he could not reveal without violating the rules of grand jury secrecy or prosecutorial ethics. He was asked, for example, whether other people might be charged. He declined to answer. He was asked to evaluate the strength of the case. He declined to answer. He acknowledged how frustrating his inability to answer undoubtedly was to the assembled media, but explained that he couldn't gather information according to the rules of grand jury secrecy -- which prohibit talking about people who were investigated but not charged with a crime -- and then afterwards reveal the information anyway because it was too "inconvenient" not to answer reporters' questions.

Later in the press conference, he said simply, "All I can do is make sure that myself and our team follow the rules."

Fitzgerald's world is far removed from the world of expediency and personal advantage in which Karl Rove operates. In his carefully crafted statements during the FBI interview on October 8, Rove indicated an obvious belief that he could get away with spreading information about government employees for political purposes as long as someone else had revealed that information first, regardless of whether or not the information was disparaging or classified. He did not appear to be concerned with where the information came from, or even whether it was true.

Although it is astounding that Rove would blatantly describe such a despicable ethos (if you can call it that), it should not have been unexpected. In the world of campaign politics that Rove has so long inhabited, smears and personal attacks are designed to seem as if they were spontaneously generated. They can then wander around, undirected, until they finally curl up in America's living rooms like so many mysterious, uninvited guests. These intruders may be rude and destructive, but no one is supposed to be able to get rid of them, in part because no one is supposed to be able to sort out or pinpoint how they got there in the first place. Thus, although Karl Rove has lurked in the background of an unprecedented number of whisper and smear campaigns -- that, for instance, John McCain had an illegitimate child (a rumor spread during the Republican primaries that preceded the 2000 election), or that former Texas Governor Ann Richards was a lesbian (a persistent rumor that was spread during Bush's Texas gubernatorial campaign) -- he has never been held accountable. And that is a state of affairs to which Rove became accustomed.

Rove has escaped responsibility for his sneaky campaign tricks because the candidates for whom he has worked -- most prominently, George Bush -- have had a stunning ability to accept, unquestioningly, the miraculous appearance of information that takes down their opponents. They had no problem about endorsing brazen dishonesty or the least interest in ferreting out bad actors in their camps. At the same time, opposing candidates have had neither the resources, nor the time to fully investigate the attacks before plummeting in the polls. Afterwards, of course, it was already far too late.

Unlike Rove's former adversaries in the political world, however, Fitzgerald has both the time and investigative resources. When Fitzgerald was appointed special prosecutor, all the known facts on the outing of Valerie Wilson indicated that government officials had broken the rules, if not the law. It's no surprise then that Fitzgerald has pursued the matter vigorously; nor should it be a surprise that Rove's statement to the FBI on October 8 would have raised some obvious red flags and caused Fitzgerald to become skeptical. Rove deliberately omitted key information about conversations with reporters that he could not possibly have forgotten; he claimed to have heard classified government information only from a reporter -- despite the fact that he himself was one of the highest government officials in the nation; and then he admitted that he had no qualms about enlisting surrogates to betray government employees in order to achieve political gain.

Rove's statement raised more questions than answers. It also opened a window into the world of a President's key adviser who never left campaign mode and who had never before been tripped up, no matter what he did. Such a man would be quite unprepared for an investigator like Fitzgerald who operates under a very different timetable and in a world ordered by radically different rules.

Now that Rove's statement has been shown to be so obviously false, it would be most surprising if when his world and Fitzgerald's collide, the result isn't a political earthquake. The moment an earthquake arrives remains impossible to predict, but it would be surprising if, in the CIA leak case, the impact of a Rove indictment did not cause massive aftershocks.

Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California. Her pieces have appeared in the Nation, the Los Angeles Times, and Salon. She may be contacted at ElizabethdelaVega@Verizon.net.

Copyright 2006 Elizabeth de la Vega

This piece originally appeared, with an introduction by Tom Engelhardt, at TomDispatch.com

The records also show that by August 2004, early in his investigation of the disclosure of Plame's identity, Special Counsel Patrick J. Fitzgerald had concluded that he did not have much of a case against I. Lewis "Scooter" Libby for illegally leaking classified information. Instead, Fitzgerald was focused on charging Cheney's top aide with perjury and making false statements, and knew he needed to question reporters to prove it.

The court records show that Libby denied to a grand jury that he ever mentioned Plame or her CIA job to then-White House press secretary Ari Fleischer or then-New York Times reporter Judith Miller in separate conversations he had with each of them in early July 2003. The records also suggest that Libby did not disclose to investigators that he first spoke to Miller about Plame in June 2003, and that prosecutors learned of the nature of the conversation only when Miller finally testified late in the fall of 2005.

All three specific allegations are contained in previously redacted sections of a U.S. Court of Appeals opinion that were released yesterday. The opinion analyzed Fitzgerald's secret evidence to determine whether his case warranted ordering reporters to testify about their confidential conversations with sources.

Fitzgerald revealed none of these specifics when he publicly announced Libby's indictment in October on charges of making false statements, perjury and obstruction of justice.

The once-sealed portions of the federal court opinion were written in February 2005 by U.S. Circuit Judge David S. Tatel, who was a member of a three-judge panel that agreed with Fitzgerald that the testimony of two reporters, Miller and Time magazine's Matthew Cooper, was crucial to his investigation.

Yesterday, the same panel concluded that because Libby was indicted and now faced public charges, the court no longer had to keep secret many of the details of the grand jury investigation that Tatel analyzed. Dow Jones Inc., parent company of the Wall Street Journal, had petitioned the court to release the eight-page Tatel opinion. Three of the pages were redacted.

Attorneys for Libby and Fleischer and a spokesman for Fitzgerald declined to comment yesterday.

Since January 2004, Fitzgerald has been investigating whether senior Bush administration officials knowingly leaked Plame's identity to discredit allegations made by her husband, former ambassador Joseph C. Wilson IV. Plame's name and her CIA role were first mentioned publicly in a column by syndicated columnist Robert D. Novak on July 14, 2003, eight days after Wilson publicly accused the administration of twisting intelligence to justify a war with Iraq.

According to Tatel's summary of the evidence that Fitzgerald presented in the court's chambers in August 2004, the prosecutor had at least a good circumstantial case on perjury but charging Libby with intentionally leaking classified information was "currently off the table," though it could be "viable" if he gained new evidence.

Tatel wrote that interviewing Miller would be crucial to making that decision, because Libby might have mentioned to her that he knew Plame's status was covert. He concluded that simply lying about a national security matter was serious enough to warrant ordering the reporters to testify about their conversations with Libby.

"While it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes ... perjury in this context is itself a crime with national security implications," he wrote.

The information gives a fuller picture of the case that Fitzgerald will likely put on against Libby. Yesterday, a federal judge scheduled his trial to start on Jan. 8, 2007.

In public remarks about the indictment, Fitzgerald has accused Libby of lying when he said that he believed he first learned of Plame from NBC reporter Tim Russert and passed along that information strictly as unverified gossip to Miller and Cooper.

Tatel's opinion also includes previously unknown details about testimony by Libby and other officials. For example, Libby acknowledged to investigators that Cheney told him in mid-June 2003 about Plame's CIA role and said she helped send her husband on a mission to Niger to determine whether Iraq was seeking nuclear material from the African nation.

That was soon after a Washington Post article on Wilson's Niger trip appeared. Libby emphasized in his testimony that Cheney only said it "in an off sort of curiosity sort of fashion."

Fitzgerald also contended that Libby lied to the grand jury when he said he never mentioned Plame or her CIA job to Fleischer when they had lunch on July 7. Fleischer recalled before the grand jury that Libby did mention Plame and said she worked in the "counterproliferation area of the CIA." Fleischer said Libby stressed that "the vice president did not send Ambassador Wilson to Niger . . . the CIA sent Ambassador Wilson to Niger . . . he was sent by his wife."

Fleischer added that he thought the lunch was "kind of weird" because the normally "closed-lip" Libby was sharing confidences and remarking that the information was "hush-hush" and "on the q.t."

Libby was also asked about two July conversations he had with Miller. He said he never mentioned Wilson's wife to Miller in the first conversation but passed along some information another reporter told him about Plame in the second, according to the documents.

Miller testified last year, however, that she thought Libby was the first government official to mention Wilson's wife to her and that he did so in three conversations: on June 23, when she visited his office in the Executive Office Building, and on July 8 and 12.

© 2006 The Washington Post Company

Gonzales faces his biggest challenge yet as the top U.S. law-enforcement officer in trying to justify the eavesdropping to senators and the public. His testimony today in Washington may help determine the future of the National Security Agency program that monitors, without a court order, phone calls and e-mails between people in the U.S. and suspected terrorists overseas.

"The terrorist surveillance program is not a dragnet that sucks in all conversations and uses computer searches to pick out calls of interest," Gonzales wrote in answers to written questions put to him by Specter in advance of the hearings.

In opening the hearing, Specter said it was designed to examine the "legal underpinnings" of the policy.

"The president of the United States has the fundamental responsibility to protect the country," said Specter, a Pennsylvania Republican. "But even as the Supreme Court has said, the president does not have a blank check."