Bush gives ground on domestic eavesdropping program
The Washington Post
WASHINGTON — The Bush administration said Wednesday it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort to be overseen by a secret court.
The change — revealed by Attorney General Alberto Gonzales in a letter to leaders of the Senate Judiciary Committee — marks an abrupt reversal by the administration, which for more than a year has aggressively defended the legality of the NSA program and disputed court authority to oversee it.
Under the new plan, Gonzales said, the secret court that administers the Foreign Intelligence Surveillance Act (FISA) will authorize eavesdropping on telephone calls and e-mails to and from the United States when "there is probable cause to believe" that one of the targets is a member of al-Qaida or an associated terrorist group.
Such intercepts previously were authorized by intelligence officers without the involvement of any court or judge — prompting charges by privacy advocates, many Democrats and some Republicans that the program was illegal.
Administration officials suggested the move was aimed in part at quelling persistent objections to NSA spying by Democrats who now control Congress, and is intended to slow or even derail legal challenges.
In August, U.S. District Judge Anna Diggs Taylor in Detroit ruled that the program was unconstitutional and should be halted. The 6th U.S. Circuit Court of Appeals allowed the program to continue on appeal but is scheduled to hear arguments in the case Jan. 31.
Some Justice officials also said that obtaining approval from the secret court will enable authorities to more easily use the information they obtain in future criminal prosecutions.
But many details of the new approach remained unclear Wednesday because administration officials refused to describe specifically how the program will work.
Officials declined to disclose, for example, whether the administration will seek a warrant for each person it wants to monitor or whether the FISA court has issued a broader set of orders covering a multitude of cases.
Sen. Jay Rockefeller, D-W.Va., chairman of the Senate Intelligence Committee, said the panel still intends to investigate the program's legality and effectiveness.
Gonzales also is likely to face hard questions today from the Senate Judiciary Committee, said Sen. Patrick Leahy, D-Vt., chairman of the committee, and Sen. Arlen Specter, R-Pa., the ranking member.
Bush first issued a secret order in October 2001 authorizing the NSA to monitor telephone calls and e-mail between the United States and overseas if one party to the communication was believed to be linked to al-Qaida or related groups. After its public disclosure by The New York Times in December 2005, the initiative was dubbed the "Terrorist Surveillance Program" by the administration.
Bush's decision to submit the program to the jurisdiction of a secret court represents the latest step back from the expansive interpretation of executive power he has asserted since the Sept. 11 attacks.
Under pressure from Congress and the courts, the president in the past six months has shut down secret overseas CIA prisons, transferred previously unidentified detainees to regular military custody, negotiated congressional approval for tribunals to try foreign terror suspects and accepted at least some regulation of how harshly such prisoners could be interrogated.
Bush hardly has surrendered his effort to broadly define the commander in chief's authority to wage war, saying last week that Congress has no business trying to stop him from sending 21,500 more troops to Iraq. In other ways, though, he has engaged in a series of strategic fallbacks intended to fend off escalating political and constitutional challenges.
"You can only be at odds with two-thirds of the people on a limited number of issues," said Jack Quinn, White House counsel under President Clinton.
Bush has backed off other confrontations with the new Democratic Congress as well, even as they square off over Iraq. He has given up efforts to confirm John Bolton as ambassador to the United Nations, offered qualified support for an increase in the minimum wage, endorsed a Democratic goal of balancing the budget by 2012 and withdrew nominations of five would-be judges bitterly opposed by Democrats.
The latest move, though, represents a stark shift for a president who made the NSA surveillance program one of his central battles last year. Bush vigorously attacked Democrats on the campaign trail for opposing his program, accusing them of not wanting to eavesdrop on terrorist telephone calls. Democrats bristled, saying their main concern was the unchecked power Bush was claiming to override traditional constitutional liberties.
Some prominent Republicans shared the concern, most notably Specter, who tried but failed to push a compromise through the Republican Congress.
"This is a prudent thing for the president to do," said Charles Cooper, a former Justice official under President Reagan.
Other conservatives were angry that Bush seemingly compromised on a point of principle. "For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's constitutional authority, to then turn around and surrender presidential authority this way is disgraceful," Mark Levin wrote on The National Review's Web site. "The administration is repudiating all the arguments it has made in testimony, legal briefs and public statements."
White House and Justice officials said the president was not retreating from his claim that he had the constitutional and legislative authority to authorize the program, but said the new rules have satisfied concerns about whether the FISA process can move quickly enough in responding to requests to authorize surveillance.
"They moot any questions we have had in the past about speed and agility," White House press secretary Tony Snow said. "We're satisfied that this will be effective. We found a happy agreement that allows the whole thing to be placed under the FISA court."
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