Washington -- Government records show that the Bush administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to begin secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an authority on the security agency that intercepts telephone calls, e-mails, faxes and Internet communications.

"They wanted to expand the number of people they were eavesdropping on, and they didn't think they could get the warrants they needed from the court to monitor those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-Secret National Security Agency" and "The Puzzle Palace: Inside America's Most Secret Intelligence Organization." "The FISA court has shown its displeasure by tinkering with these applications by the Bush administration."

The 1978 Foreign Intelligence Surveillance Act adopted by Congress in the wake of President Richard Nixon's misuse of intelligence agencies before his Watergate resignation sets a high standard for court-approved wiretaps on Americans and resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

No 'probable cause'

Faced with that standard, Bamford said the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al Qaeda suspects inside the United States.

"The court wouldn't find enough 'probable cause' to give the Bush administration wiretap warrants on everybody that talks to or e-mails the terror suspect that they were trying to target," Bamford said.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004, the most recent years for which public records are available.

Warrant requests rejected

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history.

Attorney General Alberto Gonzales said last week that Bush authorized surveillance of overseas communications by U.S.-based terror suspects because the FISA court's approval process was too cumbersome. But Gonzales did not mention any difficulties obtaining FISA court approval for wiretaps sought by the administration or the secret court's increasing tendency to modify Bush administration requests for wiretaps.

"FISA is very important in the war on terror, but it doesn't provide the speed and the agility that we need in all circumstances to deal with this new kind of threat," Gonzales said.

The Bush administration, responding to concerns expressed by some judges on the 11-judge panel, agreed last week to provide the judges a classified briefing on the domestic spying program. U.S. District Judge Malcolm Howard, a member of the 11-judge panel, told CNN that the Bush administration agreed to brief the judges after U.S. District Judge James Robertson resigned from the FISA panel, apparently to protest Bush's spying program.

Bamford, 59, a Vietnam-era Navy veteran, likens the Bush administration's domestic surveillance without court approval to Nixon-era abuses of intelligence agencies.

The National Security Agency and previous eavesdropping agencies collected duplicates of all international telegrams to and from the United States for decades during the Cold War under a program code-named "Shamrock" before the program ended in the 1970s. A program known as "Minaret" tracked 75,000 Americans whose activities had drawn government interest between 1952 and 1974, including participation in the anti-war movement during the Vietnam War.

"NSA prides itself on learning the lessons of the 1970s and obeying the legal restrictions imposed by FISA," Bamford said. "Now it looks like we're going back to the bad old days again."

Commentary:
The article uses the phrase "second-guessing." Courts don't second-guess. They apply the "rule of law," a somewhat foreign concept to the modern media.