Bush bypassed compliant court on wiretapping
Warrants rarely denied
WASHINGTON -- The court that authorizes wiretaps on terrorism suspects had not rejected a government request for a warrant in its 22-year existence to 2001, when President Bush issued an order allowing agents to wiretap citizens without judicial approval.
Bush's actions surprised many lawyers familiar with the court's workings, because federal law allows the US attorney general to authorize wiretaps without waiting for a warrant, as long as federal agents later present evidence to a judge.
Bush and his advisers have argued that the need for rapid monitoring of international telephone calls involving terrorism suspects had justified his decision to allow agents to bypass the surveillance law.
The court ''doesn't provide the speed and the agility that we need in all circumstances to deal with this new kind of threat," Attorney General Alberto Gonzales said yesterday.
But many lawyers familiar with the Foreign Intelligence Surveillance Court, as the group of judges who secretly authorize national security wiretaps is known, challenged Gonzales's description of the court procedures as cumbersome. Records showed that the court had rejected none of more than 11,000 requests for warrants from 1979 through 2001. Since then, it has rejected just four of more than 5,200 applications.
''It's a rubber stamp," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a think tank that monitors electronic government surveillance. Given the court's receptiveness to wiretapping, Bush's decision to disregard the law ''is all the more extraordinary," he said.
Gonzales also said yesterday that the Bush administration had considered asking Congress to give the government more flexibility in quickly planting wiretaps on international calls, but that it had decided to avoid a political fight that would draw attention to the domestic spying program.
''We've had discussions with . . . certain members of Congress about whether or not we could get an amendment to [the surveillance law], and we were advised that that was not something we could likely get, certainly not without jeopardizing the existence of the program, and, therefore, killing the program," Gonzales said. He did not name any of the legislators who had been consulted.
Critics of the administration have noted that after the 2001 terrorist attacks, Congress was eager to give the administration almost any counterterrorism tool it asked for -- including relaxing standards for national security wiretaps.
For example, in the USA Patriot Act, passed in 2001, Congress expanded a program allowing the attorney general to approve emergency wiretaps without warrants, giving agents 72 hours to present evidence, rather than 24.
''We have changed aspects of that law at the request of the administration in the USA Patriot Act to allow for a more aggressive but still lawful defense against terror," Senator Dianne Feinstein, Democrat of California, said in a Senate speech on Friday, criticizing Bush's decision to authorize wiretaps on his own.
Congress set up the special electronic surveillance court in 1978 in response to revelations that former President Richard M. Nixon had used the FBI to spy on his domestic enemies. The law required the government to obtain a warrant from the court before it could wiretap a phone line.
The court is composed of federal judges who are appointed by the Supreme Court's chief justice to oversee wiretap requests on an ongoing basis.
A single judge can authorize a wiretap if the FBI shows evidence that there is probable cause to believe that a target is affiliated with a foreign power. Originally the main targets were Soviet spies, but in recent years much of the focus has shifted to Al Qaeda members.
If FBI agents wanted to tap a telephone line as part of a national security investigation, they would give a government lawyer information about the suspect -- such as where the phone number came from and how the target might be linked to a foreign power.
Lawyers may reject applications before taking them to a judge, but such occurrences are rare, according to those familiar with the process.
General Michael V. Hayden, the former director of the National Security Agency, which oversees Bush's secret wiretapping program, defended the administration's bypassing of the court yesterday, arguing that the court's procedures were inefficient.
Agents must move quickly when they come across phone numbers or e-mail addresses associated with Al Qaeda, he said.
''The whole key here is agility," said Hayden, who is now Bush's deputy director of national intelligence. He said that following the surveillance law ''involves marshaling arguments [and] looping paperwork around, even in the case of emergency authorizations from the attorney general."
But Michael Woods, who served as chief of the national security law unit at the Federal Bureau of Investigation from 1997 to 2002, said yesterday that while wiretap requests for routine investigations can take weeks for approval, wiretap orders for urgent investigations can be obtained within hours. Sometimes agents even go to the judges' homes in the middle of the night, he said.
''This process can be done very quickly," Woods said. ''If this is seen as a very hot thing, it can be pushed through in days, or even hours.
''And," Woods added in his statement, ''on top of that there is the provision that says that if it's a real emergency, the attorney general can authorize the surveillance verbally, and then you have 72 hours to get everything in front of a judge."
As national security specialists tried to understand why the administration had felt a need to sidestep the surveillance law, members of Congress continued to boil over the revelation that Bush believes he has the legal authority to do so.
There were signs that the dispute could spill over into next month's Supreme Court confirmation hearings for Judge Samuel A. Alito Jr.
Alito, a former Reagan administration lawyer, has advocated a strong view of presidential power.
Senators Arlen Specter of Pennsylvania and Patrick J. Leahy of Vermont, the GOP chairman and the ranking Democrat on the Judiciary Committee, each sent letters to Alito yesterday.
In the letters, both senators warned that his views on the limits of executive power in wartime will be a focus of his hearing.
''Do you agree with Justice O'Connor's statement that 'war is not a blank check for the president?' " Specter wrote.
''In light of Justice O'Connor's statement, what jurisprudential theory would you invoke to evaluate the limits on the president's authority to conduct surveillance on US citizens without going through the court system?"
Also yesterday, Senator John D. Rockefeller IV of West Virginia, the top Democrat on the Senate Select Committee on Intelligence, released a copy of a letter he had sent to Vice President Dick Cheney in July 2003, after Cheney had briefed him on the outlines of the spying program. Rockefeller was not allowed to talk about the program. In the letter, Rockefeller had said that Congress was unable to conduct ''meaningful oversight" of the program, including whether it was legal. 