Briefing expected for surveillance court

WASHINGTON -- The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of US citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

''The questions are obvious," said US District Judge Dee Benson of Utah. ''What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"

Such comments underscored the continuing questions among judges about the program, which most of them learned about when it was disclosed last week by The New York Times. On Monday, one of 10 FISA judges, federal judge James Robertson, submitted his resignation -- in protest of the president's action, according to two sources familiar with his decision. He will maintain his position on the US District Court here.

Other judges contacted yesterday said they do not plan to resign but are seeking more information about the president's initiative. Presiding Judge Colleen Kollar-Kotelly, who also sits on the US District Court for the District of Columbia, told fellow FISA court members by e-mail Monday that she is arranging for them to convene in Washington, preferably early next month, for a secret briefing on the program, several judges confirmed yesterday.

Two intelligence sources familiar with the plan said Kollar- Kotelly expects top-ranking officials from the National Security Agency and the Justice Department to outline the classified program to the members.

The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass it.

The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow eavesdropping without warrants for up to 72 hours if the attorney general certifies there is no other way to get the information.

Still, Bush and his advisers have said they need to operate outside the FISA system in order to move quickly against suspected terrorists. In explaining the program, Bush has made the distinction between detecting threats and plots and monitoring likely known targets, as FISA would allow.

Bush administrations officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable with the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on condition of anonymity, said the administration complained that the FISA process demanded too much: to name a target and give a reason to spy on it.

The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.

The American Civil Liberties Union formally requested yesterday that Gonzales appoint an outside special counsel to investigate and prosecute any criminal acts and violations of laws as a result of the spying effort.

Also yesterday, John Negroponte, Bush's director of national intelligence, sent an e-mail to the entire intelligence community defending the program. The politically tinged memo referred to the disclosure as ''egregious" and called the program a vital, constitutionally valid tool in the war against Al Qaeda.