Why Bush decided to bypass court in
ordering wiretaps
San Francisco Chronicle
Stewart M. Powell, Hearst Newspapers
December 25, 2005
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."
|