WASHINGTON—In a major retreat, the Bush administration disclosed Wednesday that it has obtained approval for its domestic spying program from a special national security court and no longer will resort to warrantless telephone taps to search for terrorists.
Attorney General Alberto Gonzales revealed the secret arrangement with the Foreign Intelligence Surveillance Court on the eve of his first appearance before the Democratic-controlled Congress and amid an appeals court fight over a federal judge's ruling striking down the spying program as illegal and unconstitutional.
But Gonzales' disclosure left unclear whether the secret court has set up a special program that simply gives broad authority for wiretaps or requires the administration to seek warrants the same as always under a 1978 national security law. Under that law, the government obtained warrants on a case-by-case basis, after demonstrating a likelihood that the subject was a terrorist.
Since shortly after the Sept. 11, 2001, terror attacks, the National Security Agency has been wiretapping Americans' international phone calls, e-mail and other electronic communications when at least one party is suspected of supporting or engaging in terrorist activities. The disclosure of the program in 2005 provoked an outcry from civil liberties groups and members of Congress, including some Republicans.
The new procedures appeared to mark a dramatic shift from the administration's previous position that the president had the authority to eavesdrop on Americans without court scrutiny to ensure the nation's security. Justice Department lawyers, however, maintained that the president retains that power.
Administration officials said the shift results from secret "orders" issued by a judge on the seven-member court that authorize the surveillance so long as the government has probable cause to believe the subject of the eavesdropping is linked to al-Qaida or affiliated terrorist groups—conditions that mirror those in the original law.
In a letter to the leaders of the Senate Judiciary Committee announcing the new arrangement, Gonzales said any electronic surveillance that was occurring under the old program would now be subject to approval by the FISA court.
Gonzales said the administration began exploring options for seeking such approval in the spring of 2005—months before the media revealed the program's existence. He said it took "considerable time and work for the government to develop the approach that was proposed to the court" to approve the orders.
He didn't explain the reason for the shift in policy, other than to say that the government was seeking a way under the 28-year-old Foreign Intelligence Surveillance Act to obtain the "speed and agility necessary to protect the nation from al Qaida."
But Democrats and some Republicans questioned why the administration waited years to bring the controversial program under the oversight of the FISA court when both parties were willing to adjust the law to address the administration's concerns.
"This decision is welcome news, if long overdue," said Rep. Silvestre Reyes, D-Texas, chairman of the House Permanent Select Committee on Intelligence. "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."
Sen. Arlen Specter, R-Pa., a leading critic of the program, said, "It is regrettable that these steps weren't taken a long time ago."
In a Senate floor speech, Specter questioned what evidence the administration will have to disclose to the court before undertaking the surveillance and whether the Justice Department is required to seek warrants on a case-by-case basis, or whether it has been given some sort of blanket authority by the court.
Senior Justice Department officials, in a briefing to reporters, refused to go into detail about the arrangement, but denied that they have such blanket authority.
"These are orders that comply with the terms and requirements of the FISA statute, just like other orders issued by the FISA court," said the official, who spoke on condition on anonymity because of agency policy. "The orders we're talking about here are not some cookie-cutter order where you can just ... slap it together and file it with the court."
President Bush confirmed the existence of the program only after The New York Times reported it. Bush said the revelation had seriously damaged national security, and he rejected charges that the program was illegal.
Democrats, civil liberties advocates and some Republicans contended that Bush violated the Fourth Amendment protection against unreasonable searches and violated the current laws that require approval from the court.
Ann Beeson, national security director for the American Civil Liberties Union, which won a lawsuit over the program, said it hardly seems a coincidence that the administration backed off just two weeks before a federal appeals court hearing on the ACLU's injunction on the surveillance program.
Beeson said Bush had allowed for the court's involvement only "under pressure." How much involvement, she said, wasn't revealed in the letter to leaders of the Senate Judiciary Committee.
Sen. John Rockefeller, D-W. Va., the new chairman of the Senate Intelligence Committee and who first raised questions about the program in a letter to the White House in 2003, said the new arrangement was "confirmation that the administration's go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary.
"The president could have and should have worked with the Congress immediately following September 11, 2001, to fashion a surveillance program that was in compliance with all existing statutes."
Rockefeller said his committee will move ahead with a review "of all aspects of this program's legality and effectiveness."
Democrats on the Senate intelligence and judiciary committees are likely to demand more details on how the program worked, who was under surveillance and the legal justification for the program.
(Jonathan S. Landay contributed to this story.)
(c) 2007, McClatchy-Tribune Information Services.
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