New York Times
January 18, 2007
By Eric Lichtblau and David Johnston
WASHINGTON, Jan. 17 — The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.
The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.
The decision capped 13 months of bruising national debate over the reach of the president’s wartime authorities and his claims of executive power, and it came as the administration faced legal and political hurdles in its effort to continue the surveillance program.
The new Democratic-led Congress has pledged several investigations. More immediately, Attorney General Alberto R. Gonzales is expected to face hostile questioning on Thursday from the Senate Judiciary Committee on the program. And an appellate court in Cincinnati is scheduled to hear arguments in two weeks on the government’s appeal of an earlier ruling declaring the program illegal and unconstitutional.
Some legal analysts said the administration’s pre-emptive move could effectively make the court review moot, but Democrats and civil rights advocates said they would press for the courts and Congress to continue their scrutiny of the program of wiretapping without warrants, which began shortly after the terrorist attacks of Sept. 11, 2001.
Democrats praised the administration’s decision, but said it should have come much sooner.
"The announcement today is welcome news,” said Senator John D. Rockefeller IV, the West Virginia Democrat who leads the Intelligence Committee. “But it is also confirmation that the administration’s go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary.”
Mr. Rockefeller added, “I intend to move forward with the committee’s review of all aspects of this program’s legality and effectiveness.”
Since the surveillance program was publicly disclosed in December 2005 by The New York Times, the White House has maintained, in scores of court filings, policy papers and press statements, that the president has the inherent power to conduct wiretaps without a court warrant even though a 1978 law put intelligence surveillance under judicial review. The administration failed to win Congressional approval for the program last year after months of lobbying, and some Democrats are still trying to ban it outright.
The administration continued to assert on Wednesday that the N.S.A. program had operated legally, but it also said the time had come to allow the intelligence surveillance court, known as the FISA court, to review all warrants on all wiretaps in terrorism investigations.
“There’s obviously an advantage to having all three branches involved,” said a senior Justice Department official, who briefed reporters on the decision on condition of anonymity. “This issue of the terrorist surveillance program is one that has been under intense public debate and scrutiny on the Hill, and just considering all these circumstances, the president determined that this is the appropriate course.”
President Bush has authorized the continuation of the N.S.A. program every 45 days by executive order to allow the N.S.A. to conduct wiretaps on international communications without a court warrant. When the current order expires, however, President Bush has decided not to reauthorize the program, officials said.
The Justice Department said Wednesday that it had obtained multiple orders, or warrants, a week ago from the FISA court allowing it to monitor international communications in cases where there was probable cause to believe one of the participants was linked to Al Qaeda or an affiliated terrorist group.
“As a result of these orders,” Mr. Gonzales told leaders of Congressional Intelligence and Judiciary Committees in a letter dated Wednesday, “any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.”
Justice Department officials said that the FISA court orders, which were not made public, were not a broad approval of the surveillance program as a whole, an idea that was proposed last year in Congressional debate over the program. They strongly suggested that the orders secured from the court were for individual targets, but they refused to provide details of the process used to identify targets — or how court approval had been expedited — because they said it remained classified. The senior Justice Department official said that discussing “the mechanics of the orders” could compromise intelligence activities.
Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications.
But the officials suggested that the effort to obtain the court’s approval for orders on Jan. 10 was not easy. “These aren’t some sort of advisory rulings,” one official said. “These are orders issued by the FISA court, not some cookie-cutter order. These orders are complex. It took a long time to work on this.”
The officials said the new approach was based on evolving legal interpretations of the foreign surveillance law by the Justice Department, changes in the foreign surveillance statute in recent years and precedents set by the FISA court in approving specific requests to conduct electronic monitoring.
The N.S.A., which has run the program of surveillance without warrants since Mr. Bush secretly approved it in October 2001, is known to have used broad pattern analysis in tracking terrorist communications and identifying possible terrorists.
But senior lawmakers said they were still uncertain Wednesday, even after the administration’s announcement, about how the court would go about approving warrants, how targets would be identified, and whether that process would differ from the court’s practices since 1978.
The administration said it had briefed the full House and Senate Intelligence Committees in closed sessions on its decision.
But Representative Heather A. Wilson, Republican of New Mexico, who serves on the Intelligence committee, disputed that, and some Congressional aides said staff members were briefed Friday without lawmakers present.
Ms. Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, “programmatic” approval of the president’s surveillance program, rather than approval of individual warrants.
Administration officials “have convinced a single judge in a secret session, in a nonadversarial session, to issue a court order to cover the president’s terrorism surveillance program,” Ms. Wilson said in a telephone interview. She said Congress needed to investigate further to determine how the program is run.
Democrats have pledged to investigate the N.S.A. program and other counterterrorism programs they say may rely on excessive presidential authority. Senator Charles E. Schumer of New York said the announcement appeared to be intended in part to head off criticism Mr. Gonzales was likely to face at Thursday’s judiciary committee hearing.
“I don’t think the timing is coincidental,” Mr. Schumer said in a telephone interview. “They knew they had a very real problem, and they’re trying to deflect it.”
But Justice Department officials said the timing of the announcement was driven solely by the FISA court’s notification in recent days that it had approved the new orders. The officials said the orders were the result of two years of discussing with the court how to bring the eavesdropping program under court review, a process they said began long before the program become public.
A Justice Department official said the department would file a motion with the Court of Appeals for the Sixth Circuit in Cincinnati, arguing that the court’s review of the issue in a lawsuit brought by the American Civil Liberties Union “is now moot” in light of this week’s developments.
But several legal analysts said the issue might not be resolved that simply.
Bruce Fein, a Justice Department official in the Reagan administration who has been critical of the program, said the appellate court was likely to send the issue back to the trial court to re-examine the issue.
Anthony D. Romero, executive director of the A.C.L.U., said the appellate court should still examine the legality of the program and whether the it had violated intelligence law for the last five years.
“It’s not academic when the president violates the law,” Mr. Romero said.