Judges on Surveillance Court To Be Briefed
on Spy Program
Washington Post
By Carol D. Leonnig and Dafna Linzer
Washington Post Staff Writers
Thursday, December 22, 2005; Page A01
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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 the court.
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 warrantless eavesdropping 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 administration 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 about 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 R. Gonzales said the White House had tried but failed
to find a way.
One government official, who spoke on the condition of anonymity, said the
administration complained bitterly that the FISA process demanded too much: to
name a target and give a reason to spy on it.
"For FISA, they had to put down a written justification for the wiretap,"
said the official. "They couldn't dream one up."
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.
"There is a difference between detecting, so we can prevent, and monitoring.
And it's important to note the distinction between the two," Bush said Monday.
But he added: "If there is a need based upon evidence, we will take that
evidence to a court in order to be able to monitor calls within the United
States."
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 D. 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.
Benson said it is too soon for him to judge whether the surveillance program
was legal until he hears directly from the government.
"I need to know more about it to decide whether it was so distasteful,"
Benson said. "But I wonder: If you've got us here, why didn't you go through
us? They've said it's faster [to bypass FISA], but they have emergency
authority under FISA, so I don't know."
As it launched the dramatic change in domestic surveillance policy, the
administration chose to secretly brief only the presiding FISA court judges
about it. Officials first advised U.S. District Judge Royce C. Lamberth, the
head of FISA in the fall of 2001, and then Kollar-Kotelly, who replaced him in
that position in May 2002. U.S. District Judge George Kazen of the Southern
District of Texas said in an interview yesterday that his information about the
program has been largely limited to press accounts over the past several
days.
"Why didn't it go through FISA," Kazen asked. "I think those are valid
questions. The president at first said he didn't want to talk about it. Now he
says, 'You're darn right I did it, and it's completely legal.' I gather he's
got lawyers telling him this is legal. I want to hear those arguments." Judge
Michael J. Davis of Minnesota said he, too, wants to be sure the secret program
did not produce unreliable or legally suspect information that was then used to
obtain FISA warrants.
"I share the other judges' concerns," he said.
But Judge Malcolm Howard of eastern North Carolina said he tends to think
the terrorist threat to the United States is so grave that the president should
use every tool available and every ounce of executive power to combat it.
"I am not overly concerned" about the surveillance program, he said, but "I
would welcome hearing more specifics."
Researcher Julie Tate contributed to this report.
|