Here Comes the Judge

The Bush administration announced Wednesday that a secret court has authorized intelligence agencies to monitor suspected Al Qaeda phone calls into and out of the United States. As a result, administration officials said that President Bush will now put his controversial warrantless surveillance program, which he authorized without court approval after 9/11, under judicial supervision. The officials say he will abide by secret rules set down by the Foreign Intelligence Surveillance Court.

The news, made public in a letter sent by Attorney General Alberto Gonzales to the leaders of the Senate Judiciary Committee, certainly seemed politically convenient for the White House. Today, Gonzales is scheduled to make his first public Judiciary Committee appearance before the new Democrat-controlled Senate, where he was expected to face tough questioning about warrantless wiretapping.

Senate Judiciary Chairman Patrick Leahy and ranking minority member Arlen Specter have both criticized the Bush administration's surveillance programs, and pledged to try to constrain such eavesdropping. The Justice Department's letter to the Judiciary Committee indicated that the foreign intelligence court had actually issued its orders authorizing the eavesdropping program on Jan. 10. Privately, some congressional Democrats speculated that the administration held back word of the court rulings for a week so that it could be released for maximum impact right before Gonzales's Capitol Hill appearance.

One Capitol Hill official familiar with Democratic thinking—who, like others quoted in this story didn't want to be named talking about sensitive intelligence issues—said that the decision to put the program under court supervision amounts to "a significant reversal by this administration ... They've been telling us for more than a year that [the courts] aren't flexible enough." This official said congressional critics, including prominent Democrats, will want to know why the administration's attitude toward working with the secret court changed—and why they did not work things out earlier. Congressional committees were also likely to ask tough questions about the domestic side of the surveillance program—including how it is run, who runs it and who decides which people to monitor, the official said.

In a conference call with journalists Wednesday, two senior Justice Department officials talked about the court rulings on condition of anonymity. They acknowledged that in light of the court decision, the administration hopes congressional critics will slow down or abandon efforts to curtail or regulate the surveillance programs.

One of the complaints about the original warrantless surveillance program was that it potentially allowed communications to or from the United States to be monitored on the recommendation of intelligence bureaucrats at the ultrasecret National Security Agency—without any judicial oversight. Before 9/11, the NSA in most circumstances was restricted to using its powerful worldwide surveillance network only to monitor overseas communications. If the NSA or other federal law-enforcement agencies wanted to eavesdrop on calls or messages going into or out of the United States, they first had to obtain permission from the Foreign Intelligence Surveillance Court, the secret panel set up by Congress after Watergate and other intelligence-related scandals during the 1970s.

But after 9/11, President Bush secretly authorized NSA to monitor those communications without seeking court permission, if intelligence officials believed one of the parties had terrorist connections. The administration claimed the law setting up the court was too antiquated and slow to allow intelligence officials to conduct speedy investigations in possible crises.

In their background briefing, officials said the administration had been working for two years with the Foreign Intelligence Surveillance Act (FISA) court to craft the new rules. The officials declined to give details about how the new system will work. They claimed the information is highly classified and could compromise intelligence operations.

However, a law-enforcement official familiar with the issue indicated that investigators seeking to monitor a suspected Al Qaeda message will now have to demonstrate to a foreign-intelligence-court judge that there is "probable cause" to believe that one of the parties to the message is connected to Al Qaeda. The official indicated that it might be possible, under the new setup, for authorities to eavesdrop first and seek permission later, if time is critical. That isn't new. The existing Foreign Intelligence Surveillance Act allows law enforcement or intelligence officials to conduct emergency surveillances without advance court permission provided that a court order legalizing the monitoring is obtained within a few days. Administration officials indicated they still are likely to ask Congress for possible changes to the current FISA law so that it is easier to get permission to conduct emergency eavesdropping.

The court order could remove a major point of friction between the White House and Capitol Hill on intelligence issues. In the last few weeks, congressional leaders have indicated that NSA warrantless surveillance ranked high among their investigative priorities, along with interrogation and detention practices used by the CIA and other antiterror agencies. Some on Capitol Hill still intend to do just that. In a written statement, new Senate Intelligence Committee Chairman Jay Rockefeller questioned why the administration did not seek court approval from the outset for its anti-Al Qaeda monitoring program. Now that he has more power to extract those answers, he's not about to drop the issue quietly.