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Administration to let secret court monitor domestic spying

CNN | January 17, 2007

Story Highlights

Attorney general says administration will submit monitoring requests to FISA court
Court agrees to preserve "speed and agility" needed, letter to senator says
Administration program to monitor calls without warrants has been criticized

WASHINGTON (CNN) -- The Bush administration has agreed to allow a federal court that specializes in wiretap requests to oversee its non-warrant electronic surveillance program, the Justice Department said Wednesday.

In a letter to Democratic Sen. Patrick Leahy of Vermont, the chairman of the Senate Judiciary Committee, Attorney General Alberto Gonzales wrote that a judge on the Foreign Intelligence Surveillance Court has agreed to authorize the program and preserve "the speed and agility necessary" to battle terrorism.

The Bush administration has asserted for more than a year that it had the authority to monitor U.S. residents' international communications without a judge's approval, as the Foreign Intelligence Surveillance Act requires. But many lawmakers and legal observers have questioned that claim and argued that President Bush violated that 1978 law by authorizing the eavesdropping.

In the letter, Gonzales maintained that the program to monitor communications without a court order is legal. However, he said that FISA court orders issued on January 10 mean Bush won't need to reauthorize the controversial surveillance effort. ( Read Gonzales' letter to the Senate Judiciary Committee external link)

"The president is committed to using all lawful tools to protect our nation from the terrorist threat, including making maximum use of the authorities provided by FISA and taking full advantage of developments in the law," Gonzales wrote.

'Welcome news, if long overdue'

The announcement comes a day before Gonzales is scheduled to appear before Leahy's committee. Leahy said he welcomed the administration's decision.

"As I pointed out for sometime, and as other senators on both sides of the aisle pointed out, that was at the very best of doubtful legality," Leahy said. He said surveillance was needed to prevent terrorist attacks, "But we can and we should do it in ways that protect the basic rights of all Americans."

And Democratic Rep. Silvestre Reyes of Texas, the chairman of the House Intelligence Committee, called the decision "welcome news, if long overdue."

"It proves that this surveillance has always been possible under the Foreign Intelligence Surveillance Act and that there was never a good reason to evade the law," Reyes said in a written statement.

Bush had periodically reauthorized the program since its inception. That authorization will no longer be necessary, "Because the new rules will serve as guideposts," White House spokesman Tony Snow said.

The administration secretly instituted the program, which it dubbed a "terrorist surveillance program," after al Qaeda's 2001 attacks on New York and Washington. It gives the secretive National Security Agency the power to conduct wiretaps without a court order. The Bush administration said that authority was necessary to protect the country from terrorists in a new age of electronic communication.

The program was widely criticized after it became public in November 2005. Republican Sen. Arlen Specter of Pennsylvania, then chairman of the Judiciary Committee, said FISA "flatly prohibits" electronic eavesdropping without a judge's permission, and a federal judge ruled the program unconstitutional in July.

Democratic leaders have said the eavesdropping program would receive more scrutiny once they won control of Congress in November's elections.

Gonzales wrote that the effort to bring the program under the FISA court dates back two years. That assertion drew questions at the White House, where Snow tried to fend off suggestions that Wednesday's announcement was politically timed.

Surveillance authority to last 90 days

A senior Justice Department official, who spoke on condition of anonymity because of the sensitivity of the information, said the department still believes the 1978 law should be modified to account for advances in electronic communication. The January 10 orders from the FISA court will "take some political heat off the debate," he said.

"These orders allow us to do the same thing that we've been doing, but we will be operating under the orders we've obtained from a FISA judge," the official said.

The government will ask the court to approve surveillance requests for 90 days, after which it must seek renewed permission. Justice Department officials said the court issued more than one order governing the program, but they refused to provide details of the still-classified program.

The officials also refused to comment on how the procedures could be implemented without damaging national security, as top administration figures insisted.

The White House vigorously defended the program at the time of its disclosure and resisted calls for greater oversight, but Snow said administration officials were working to get court approval at that time.

"It's an example of a case where we take hits for doing what's right rather than getting credit for not doing what's expedient," he said.

Specter, now the Judiciary Committee's ranking Republican, said he wants to see more detail about how the program will now be run.

"I think we need to know more about the procedures on the determination of probable cause, whether it is on individualized warrants or it is a group program," he said. "And we will need to know more about the determination of the individual being an agent of al Qaeda."

CNN's Terry Frieden contributed to this report.

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