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Wiretap review plan is still unclear
LA Times
By Richard B. Schmitt, Greg Miller and David G. Savage, Times Staff Writers
January 19, 2007

WASHINGTON — A day after announcing that it had scrubbed a controversial warrantless surveillance program, the Bush administration refused to provide details to Congress of how a new court-review process for terror-related wiretaps would work, triggering a fresh round of complaints and suspicions from Democrats about what the administration was doing.

At the same time, President Bush and other administration officials indicated that little had changed in the electronic eavesdropping program, originally launched after the Sept. 11 attacks, other than the fact that a court had finally blessed it.

Atty. Gen. Alberto R. Gonzales revealed Wednesday that the secret court created by the Foreign Intelligence Surveillance Act to supervise wiretaps approved orders authorizing the surveillance last week.

Bush said the approval vindicated his position that he was justified in launching the surveillance. "Nothing has changed in the program except the court has said we've analyzed it and it's a legitimate way to protect the country," Bush said in an interview with Tribune Broadcasting.

Pressed during a hearing Thursday before the Senate Judiciary Committee, Gonzales said the administration had changed the legal justification for the surveillance program but not the essential elements of the operation.

Disputing the suggestion that the warrantless program, run by the National Security Agency, had been "terminated," Gonzales said, "It took us a period of time to develop what we thought would be an acceptable legal argument that would be acceptable to the FISA court."

When asked to explain the legal argument, Gonzales refused. "I don't want to get into a public discussion about the deliberations and work of the court," he said.

The surveillance issue has become the first major battlefront between the new Congress and an administration that Democrats consider overly secretive and reluctant to share power.

With Gonzales and other officials mum about the program's details, Democrats refused to accept their assurances. It was not immediately clear how that stalemate might be resolved. The administration supplied classified briefings to several members of Congress, but lawmakers said they continued to have questions.

"I don't think there were any assurances today" that the White House is not still bypassing parts of FISA, Rep. Anna G. Eshoo (D-Atherton), a member of the House Intelligence Committee, said in a telephone interview. When administration officials briefing her committee Thursday, including Director of National Intelligence John D. Negroponte, were asked about the matter, she said, "I think they were quite skittish."

The Senate Judiciary Committee chairman, Sen. Patrick J. Leahy (D-Vt.), and the ranking Republican, Sen. Arlen Specter (R-Pa.), said the chief judge of the FISA court had promised them late Wednesday access to the court orders approving the surveillance. But Gonzales indicated at the hearing that the administration might attempt to block the move because of concerns that the documents contained classified information.

The administration's decision appeared to leave Congress with few options. Legal experts said the ruling appeared to render moot a series of private lawsuits challenging the program. The main option Congress has left is to change the FISA law under which the court has acted, although lawmakers acknowledge they have too little information at this point to know whether that would be necessary.

Gonzales said the idea of bringing the program under the FISA law had long been discussed in the White House, and that he made the issue a priority shortly after he became attorney general in early 2005.

Government officials familiar with the matter said the Bush administration's negotiations with the FISA court accelerated after Democrats won control of Congress in November.

The officials also said the negotiations centered on securing an agreement that would allow the administration to seek warrants on groups of people in certain circumstances, rather than being required to obtain separate court orders for every individual under suspicion.

One official, who spoke on condition of anonymity, said this was the "innovative" new interpretation that Justice officials had described when briefing reporters on the new guidelines.

The changes appear to require individual warrants when the target is a U.S. citizen or has permanent legal resident status. But the changes could make it easier to obtain multiple warrants rapidly when the targets are in the country on temporary visas, as was the case with the Sept. 11 hijackers.

The new arrangement is likely to continue to be a source of controversy because the ability to obtain a "bundle" of warrants, as one official put it, could be seen as undermining the intent of the law to require the government to show cause in individual cases.

Seeking to target members of a group as a whole, even Al Qaeda, would be unusual, legal experts said.

"That would be novel and controversial," said Michael Woods, a former chief of the FBI national-security law division. "But that would explain why you got something new without having to have changes in the FISA statute."

The FISA law does distinguish between U.S. citizens and certain foreigners living in the United States.

When Congress passed the law in 1978, it was concerned with protecting Americans from being spied on by U.S. intelligence agencies. At the same time, lawmakers wanted the CIA and NSA to monitor Soviet spies and other foreign agents in the United States.

FISA says the government must seek a warrant first before "intentionally targeting a United States person" by listening to their phone calls. These persons are defined as U.S. citizens and lawful permanent residents.

The law is less clear, and less demanding, for other persons in the United States. That distinction could give the administration justification for arguing that it seeks to intercept the calls of foreign terrorists and foreigners who are living in the United States, but it was not "intentionally targeting" U.S. citizens.

The FISA judges may have been persuaded that kind of surveillance did not violate the 1978 law and therefore could be authorized legally.


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