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In 2002, Justice Department said eavesdropping law working well

WASHINGTON—A July 2002 Justice Department statement to a Senate committee appears to contradict several key arguments that the Bush administration is making to defend its eavesdropping on U.S. citizens without court warrants.

The Foreign Intelligence Surveillance Act, the law governing such operations, was working well, the department said in 2002. A "significant review" would be needed to determine whether FISA's legal requirements for obtaining warrants should be loosened because they hampered counterterrorism efforts, the department said then.

President Bush, Attorney General Alberto Gonzales and other top officials now argue that warrantless eavesdropping is necessary in part because complying with the FISA law is too burdensome and impedes the government's ability to rapidly track communications between suspected terrorists.

In its 2002 statement, the Justice Department said it opposed a legislative proposal to change FISA to make it easier to obtain warrants that would allow the super-secret National Security Agency to listen in on communications involving non-U.S. citizens inside the United States.

Today, senior U.S. officials complain that FISA prevents them from doing that.

James A. Baker, the Justice Department's top lawyer on intelligence policy, made the statement before the Senate Intelligence Committee on July 31, 2002. He was laying out the department's position on an amendment to FISA proposed by Sen. Mike DeWine, R-Ohio. The committee rejected DeWine's proposal, leaving FISA intact.

So while Congress chose not to weaken FISA in 2002, today Bush and his allies contend that Congress implicitly gave Bush the authority to evade FISA's requirements when it authorized him to use force in response to the Sept. 11, 2001, attacks three days after they occurred—a contention that many lawmakers reject.

Glenn Greenwald, an Internet blogger, first connected the earlier Justice Department statement to the Bush administration's current arguments on his Web log, called Unclaimed Territory.

Baker's 2002 statement drew new attention Wednesday as the White House continued its campaign to justify eavesdropping on Americans who are suspected of being in contact with al-Qaida or other terrorist groups, despite possible violation of FISA.

Bush visited the NSA's sprawling complex at Fort Meade, Md., on Wednesday to deliver a closed-door morale-boosting talk to its workforce.

He later repeated to reporters that the eavesdropping operation was limited to communications in which one participant was outside the United States.

"When terrorist operatives are here in America communicating with someone overseas, we must understand what's going on if we're going to do our job to protect the people," Bush said.

The administration insists that Bush has the legal and constitutional authority to order the NSA program, which began after the Sept. 11, 2001, attacks. But Democrats and some Republicans contend that Bush may have violated FISA, which governs how the government can monitor international calls and e-mails.

The law requires the government to show a secret federal court that it has "probable cause" to believe that a target for domestic eavesdropping is an agent of a foreign government or involved with a terrorist organization like al-Qaida.

DeWine's bill would have lowered the "probable cause" standard to one of only "reasonable suspicion" for warrants involving foreigners in the country.

Baker said in 2002 that because the "proposed change raises both significant legal and practical issues, the administration at this time is not prepared to support it."

He said that Justice Department lawyers were trying to determine whether the lower standard would pass "constitutional muster."

Baker also said that the Justice Department had "been aggressive in seeking FISA warrants" and that congressional approval of the USA Patriot Act had allowed investigators "to use our expanded FISA tools more effectively to combat terrorist activities."

"It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require," he said then.

Brian Roehrkasse, a Justice Department spokesman, said Wednesday that Gonzales stands by the administration's current view that FISA warrant requirements impose "additional layers of review" that sacrifice "critical speed and agility."

Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, sent Gonzales a letter detailing a series of pointed questions that he intends to ask during a Feb. 6 hearing into the NSA program's legality.

The letter noted that under FISA, federal authorities can wiretap anyone and then seek a warrant within 72 hours.

Specter said he wanted Gonzales to explain why Bush didn't ask Congress to change FISA to make it easier to conduct surveillance with judicial approval.

He also indicated that Congress could have adjusted the law when it passed the anti-terrorism Patriot Act in the wake of the Sept. 11 attacks.

To read Greenwald's posts on the 2002 Justice Department statement, go to http://glenngreenwald.blogspot.com/

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(Knight Ridder Newspapers correspondents William Douglas and James Kuhnhenn contributed to this report.)

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(c) 2006, Knight Ridder/Tribune Information Services.

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