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Court Was Briefed on Surveillance, but, Did Not Consent
Yahoo News/AP
May 17, 2006

WASHINGTON - Two judges on the secretive court that approves warrants for intelligence surveillance were told of the broad monitoring programs that have raised recent controversy, a Republican senator said Tuesday, connecting a court to knowledge of the collecting of millions of phone records for the first time.

President Bush, meanwhile, insisted the government does not listen in on domestic telephone conversations among ordinary Americans. But he declined to specifically discuss the compiling of phone records, or whether that would amount to an invasion of privacy.

USA Today reported last week that three of the four major telephone companies had provided information about millions of Americans' calls to the National Security Agency. However, Verizon Communications Inc. denied on Tuesday that it had been asked by the agency for customer information, one day after BellSouth said the same thing.

Orrin Hatch, R-Utah, said that at least two of the chief judges on the Foreign Intelligence Surveillance Court had been informed since 2001 of White House-approved National Security Agency monitoring operations.

"None raised any objections, as far as I know," said Hatch, a member of a special Intelligence Committee panel appointed to oversee the NSA's work.

Hatch made the comment in answering a question in an interview about recent reports of the government compiling lists of Americans' phone calls. When pressed later, Hatch suggested he was also speaking broadly of the administration's terror-related monitoring.

Asked if the judges somehow approved the operations, Hatch said, "That is not their position, but they were informed."

An aide later said Hatch's comments should in no way be considered confirmation of any efforts to collect phone records.

The surveillance court, whose 11 members are chosen by the chief justice of the United States, was set up after Congress rewrote key laws in 1978 that govern intelligence collection inside the U.S.

The court is charged with secretly considering individual warrants for physical searches, wiretaps and traces on phone records when someone is suspected of being an agent of a foreign power. Making such requests to a regular court might reveal highly classified information.

Since 9/11, the court has been led by U.S. District Judge Royce C. Lamberth, and then by U.S. District Judge Colleen Kollar-Kotelly, who succeeded him.

In December, U.S. District Judge James Robertson resigned from the court, in an apparent protest of the Bush administration's surveillance work.

Bush reiterated Tuesday that the government does not "listen to domestic phone calls without court approval."

He appeared to acknowledge the NSA sweep of phone records indirectly, saying that the program referred to by a questioner "is one that has been fully briefed to members of the United States Congress in both political parties."

"They're very aware of what is taking place. The American people expect their government to protect them within the laws of this country and I'm going to continue to do just that," Bush said.

Spokesman Tony Snow later said Bush's comments did not amount to a confirmation of published reports that the NSA's surveillance included secretly collecting millions of phone-call records.

Verizon, meanwhile, called into question key points of a USA Today story that has led to wide coverage by other news media in the past week.

"Contrary to the media reports, Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records," the New York-based phone company said in an e-mail statement.

A day earlier, BellSouth Corp. had said NSA had never requested customer call data, nor had the company provided any.

A story in USA Today last Thursday said Verizon, AT&T Inc. and BellSouth had complied with an NSA request for tens of millions of customer phone records after the 2001 terror attacks.

USA Today spokesman Steve Anderson said Tuesday the paper is confident in its story, "but we won't summarily dismiss BellSouth's and Verizon's denials without taking a closer look."

The Senate Intelligence Committee is to hold a confirmation hearing Thursday on Bush's nomination of Air Force Gen. Michael Hayden to head the CIA. Hayden is sure to face vigorous questioning. As the NSA director from 1999 until last year, Hayden oversaw the creation of some of the government's most controversial intelligence surveillance.

The Senate and House intelligence chairmen — Sen. Pat Roberts (news, bio, voting record), R-Kan., and Rep. Peter Hoekstra (news, bio, voting record), R-Mich. — announced Tuesday that their full committees would be briefed for the first time on Bush's warrantless surveillance program. The operations have allowed the government to eavesdrop on domestic calls when one party is overseas and suspected of terrorism.

Democrats have demanded such information for months, saying the administration was violating the law by withholding it from committee members.

Sen. Carl Levin (news, bio, voting record), D-Mich., another Intelligence Committee member on the select NSA panel, said the administration had given the public only part of the story.

"Once they start characterizing the program, it seems to me they have to start characterizing the parts of the program that average Americans would care about, which is access — if it existed — to the phone numbers that they call," Levin said. "There is a serious privacy concern."

Sen. Kit Bond, R-Mo., also member of the select NSA panel, said the Intelligence Committee's legal counsel concluded that basic information, such as phone numbers dialed, is not protected under the Constitution's Fourth Amendment.

"For as long that I know of, the government has always had an opportunity to look at business records without a court order," he said. "Business records are not personal property."

He said that concept hinges on a 1979 Supreme Court case, Smith v. Maryland. Later law, he added, allows the government to do legitimate surveillance on telecommunications.

But some legal experts have raised doubts about that rationale. Kate Martin, director of the Center for National Security Studies, said that after that 1979 case Congress required courts to approve the use of electronic devices that capture basic information about calls in real time — or get a court order or a subpoena for phone records stored by phone companies.

On Capitol Hill to meet with senators about his nomination, Hayden declined to discuss surveillance programs or Hatch's comments about consultations with the surveillance court judges.

Some experts also questioned the legal significance of advising any of the surveillance court judges, outside of a case they would formally consider.

"There's really no clear legal significance to that because it's not a formal opinion," said Michael J. Woods, a former senior FBI lawyer who argued cases before the court. "It obviously gives some comfort to the administration on their theory of this program, but it's much less than a formal legal ruling."

Associated Press writers Ted Bridis and Philip Elliott contributed to this report.

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