[Infowarrior] - Senators Demand Details on New Eavesdropping Rules

[Richard Forno]

Senators Demand Details on New Eavesdropping Rules

By DAVID JOHNSTON and SCOTT SHANE
Published: January 19, 2007
http://www.nytimes.com/2007/01/19/washington/19justice.html?_r=1&oref=slogin

WASHINGTON, Jan. 18 ‹ Lawmakers demanded more information on new rules for
governing a domestic surveillance program on Thursday, a day after the Bush
administration announced that it had placed the National Security Agency
eavesdropping under court supervision.

Senators from both parties who had long criticized the eavesdropping without
court warrants said at a Judiciary Committee hearing that they welcomed the
change but wanted details. They said they wanted to be sure that the new
rules adequately protected Americans¹ privacy.

A central question is whether the court will approve eavesdropping case by
case, its traditional practice, or will it issue broader orders that provide
additional government leeway in selecting targets.

A Congressional official who has been briefed on the new procedures called
it a hybrid of individual warrants and broader approval.

Some lawmakers wanted to know why the administration had waited five years
from the start of the program to put it under the supervision of the secret
intelligence court and asked whether the administration might decide on its
own to revive eavesdropping without warrants if the court denied a request.

At the hearing, Attorney General Alberto R. Gonzales, a chief defender of
the program, tried, apparently without success, to quell the flood of
questions.

The session quickly became a forum for senators to say the administration
was withholding pertinent information about the decision. House Democrats
raised similar concerns.

Pressed repeatedly for details, Mr. Gonzales offered little new information
and would not agree to provide more documents to explain the decision. He
declined to answer questions about why the administration had reversed
itself after saying for more than a year that the program could not operate
effectively under court supervision.

³There was a reason why we didn¹t do this as an initial matter shortly after
the attacks of Sept. 11,² said Mr. Gonzales, who was White House counsel.

Referring to the Foreign Intelligence Surveillance Act, or FISA, the law
that created the secret court, he added, ³The truth of the matter is we
looked at FISA and we all concluded there¹s no way we can do what we have to
do to protect this country under the strict reading of FISA.²

Later, Mr. Gonzales said, after he became attorney general in 2005, he
started reviewing whether the program might be brought under the court¹s
supervision.

Justice Department officials said they had worked on the ³innovative,
complex orders² for two years.

On Jan. 10, an unidentified judge of the court approved the first new order.
The next day, National Security Agency officials called the House and Senate
intelligence committees to outline the new system, and Justice Department
officials briefed some committee staff members on Friday, Congressional
officials said.

A senior administration official involved in formulating the policy
expressed frustration with the criticism on Capitol Hill. He said Democrats
had repeatedly said the program was valuable but should be conducted under
FISA.

Now that that has happened, the official said, ³People ought to take yes for
an answer.²

He added that even if the critics are suspicious of the administration, ³I
don¹t think there¹s any basis for being suspicious of the FISA court,² which
has approved the system.

At the hearing, Mr. Gonzales said the rules protected national security by
allowing continued eavesdropping, but required the government to halt
quickly the monitoring of people who were not found to be doing anything
wrong.

With Justice Department officials unwilling to provide lawmakers with
documents, lawmakers explored other ways to obtain information. In response
to a request from the Judiciary Committee chairman, Patrick J. Leahy,
Democrat of Vermont, the presiding judge of the foreign intelligence
surveillance court, Colleen Kollar-Kotelly, a federal district judge in the
District of Columbia, said the court would be willing to turn over to the
panel its classified orders.

But Judge Kollar-Kotelly wrote in a letter that her court would cooperate
only ³if the executive and legislative branches reach agreement for access
to this material.²

Mr. Gonzales, asked by Mr. Leahy whether he would object to the disclosure
of the documents to Congress, replied that he hoped to keep operational
aspects of the program secret. Mr. Gonzales said that before he answered the
question he would need to consult his ³principal,² apparently a reference to
President Bush.

Mr. Leahy expressed skepticism, saying: ³I don¹t think I fully understand
that. Are you saying that you might object to the court giving us decisions
that you¹ve publicly announced? Are we a little Alice in Wonderland here?²

Mr. Gonzales replied: ³I¹m not saying that I have objection to its being
released. What I¹m saying is it¹s not my decision to make.²

Some lawmakers said the administration should have changed course much
sooner.

³It is a little hard to see why it took so long,² said Senator Arlen
Specter, Republican of Pennsylvania.

Senator Charles E. Schumer, Democrat of New York, asked about the court¹s
approval of the surveillance orders.

³I¹d like to know,² Mr. Schumer said, ³if there is an intention to do this
on an individual basis or on a case-by-case basis where 5, 6, 10, 20, 100
individuals are involved or is it broader brush than that? Because if it is
very broad-brush approval, again because it¹s secret, we have no way of
knowing, it doesn¹t do much good.²

Mr. Gonzales said, ³They meet the requirements under FISA.²

The Justice Department has tried to streamline the application for warrants
under the surveillance law, creating a computerized system called Turbo
FISA.