Secret court to oversee wiretapping
WASHINGTON -- The White House said yesterday that it has agreed to seek warrants from a secret court before eavesdropping on the phone calls of Americans, saying that it has reached an agreement with a judge of the court to make the approval process quicker and more efficient.
Administration officials informed Congress that the judge, who was not named, has already issued "innovative" orders authorizing the government to target phone calls and e-mails between people in the United States and foreigners when there is "probable cause" to believe one of the participants is part of a terrorist group.
The administration did not back down from President Bush's claim that he has the wartime authority to bypass a law requiring warrants to spy on Americans. But the Justice Department, after secret discussions with the judge of the Foreign Intelligence Surveillance Court, determined that it no longer needed to bypass the warrant law, because the approval process would be quicker.
The announcement, in the form of a letter from Attorney General Alberto Gonzales to congressional leaders who had been seeking to force the administration to comply with the law, did not specify what would be changed in the approval process. It did not say whether the court would consider each case individually before determining whether there is "probable cause" to believe terrorism suspects are involved.
Legal specialists speculated, however, that the judge might have agreed to give the government authority to tap all calls from certain people or locations, or even broader authority to set wiretaps based on its own determination of probable cause, to be reviewed at a later time.
Gonzales's letter merely described the new process as complicated: "These orders are innovative, they are complex, and it took considerable time and work for the government to develop the approach that was proposed to the court and for the judge . . . to consider and approve these orders."
Therefore, the attorney general wrote, "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."
Under Bush's order, the National Security Agency has monitored thousands of calls between Americans and alleged terrorist suspects overseas over the past five years, starting after the 2001 terrorist attacks.
But after the wiretap program was revealed in The
"This decision is welcome news, if long overdue," said Representative Silvestre Reyes , Democrat of Texas and chairman of the House Intelligence Committee. "It proves that this surveillance has always been possible under the Foreign Intelligence Surveillance Act and that there was never a good reason to evade the law."
The White House decision seemed timed to block a lawsuit by the American Civil Liberties Union, which was set to go before an appeals court on Jan. 31. Last year, a federal judge agreed with the ACLU that Bush's wiretapping program was illegal.
Anthony Romero, executive director for the ACLU, called yesterday's announcement a "quintessential flip-flop," and questioned its timing.
The ACLU said it hopes the case will go forward, and that the appeals panel will review the legality of the deal struck by the administration and the secret surveillance court.
"The legality of this unprecedented surveillance program should not be decided by a secret court in one-sided proceedings," said Ann Beeson , associate legal director for the ACLU. "And without a court order that prohibits warrantless wiretapping, Americans can't be sure that their private calls and e-mails are safe from unchecked government intrusion."
Indeed, some legal specialists and members of Congress demanded to know more about the new authority granted by the FISA court.
"I think we need to know more about the determination of probable cause, whether it is on individualized warrants or it is a group program," Senator Arlen Specter , a Republican of Pennsylvania and ranking member of the Judiciary Committee, said in questioning whether the new process would satisfy the law.
Martin Lederman , a Georgetown University law professor, challenged the legality of granting blanket permission to wiretap people, writing on an Internet blog post that "issuing general rather than case- specific orders . . . would be innovative, that's for sure."
A senior Justice Department official who briefed reporters yesterday declined to provide details of the new process, saying only that the orders will be reviewed in three months.
"These are orders for 90 days," the official said, according to a transcript prepared by the Federal News Service. "There's more than one order, and these orders give us what we believe we need."
But both Specter and Lederman also said more information is needed on how the government classifies an individual as an agent of Al Qaeda or another terrorist organization.
"We will need to know more about the determination about the individual being an agent of Al Qaeda . . . to see that probable cause has been established under the customary standards," Specter said.
Lederman questioned whether the new process would indeed meet the standards of the 1978 law setting up the FISA court, which requires that any American being spied upon must be an accused foreign agent.
He said the law also requires that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power."
He noted that the law can be changed only by an act of Congress, not an agreement between a FISA judge and government lawyers.
Congressional leaders did not rule out the possibility of more legislation guiding the warrant process.
Senator Patrick Leahy, Democrat of Vermont and chairman of the Judiciary Committee, called the administration's decision "a major step" in the right direction, but cautioned that "only with meaningful oversight can we ensure the balance necessary to achieve security with liberty."
Bender can be reached at bender@globe.com 
