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The revelation of the National Security Agency’s secret warrantless domestic spying program this winter sent shock waves through much of Washington, but it didn’t come as any surprise to U.S. Attorney for the District of Columbia Kenneth Wainstein. Wainstein, who’s been nominated to be the assistant attorney general for the Justice Department’s new National Security Division, testified at his confirmation hearing May 2 that he first learned of the program in the summer of 2002 during his stint as the FBI’s general counsel. Under questioning from the Senate Judiciary Committee’s Russell Feingold (D-Wis.), Wainstein said he never rendered a legal opinion on the program while at the FBI, but he finds the DOJ’s current legal justification for the program “compelling.” If confirmed, Wainstein will oversee the DOJ lawyers who handle federal court applications for wiretapping warrants under the Foreign Intelligence Surveillance Act — the precise mechanism the warrantless-spying program was designed to circumvent. Wainstein says once on the job, he’ll examine how the NSA program intersects with his division’s FISA process. “This is an area I will be looking at closely,” he said. If Democrats do not choose to block his confirmation vote in protest of DOJ policies, as they have with Office of Legal Counsel acting chief Steven Bradbury, Wainstein could be confirmed before the summer recess.
Jason McLure can be contacted at [email protected].

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