Jan 15, 2007
The surprise announcement by Gonzales said President Bush has agreed that "any electronic surveillance that was occurring" under the program will be conducted subject to the approval of the Foreign Intelligence Surveillance Court in Washington, D.C. The program is conducted by the National Security Agency.
In a two-page letter (PDF) to the U.S. Senate's Judiciary committee, Gonzales did not specify what prompted the abrupt policy change. Gonzales did say that it took "considerable time and work" for the Justice Department to devise a method that suited both prosecutors and the judges on the court.
The change appears to represent a concession to critics of the NSA program, who have charged that it was illegal and unconstitutional for the government to spy on Americans without any judicial oversight. The Bush administration claims that only international communications involving someone with ties to terrorism are targeted.
It's not clear if the letter was prompted by legal or political concerns. Gonzales' announcement came less than 24 hours before he is scheduled to appear (http://judiciary.senate.gov/hearing.cfm?id=2473) before the now Democrat-controlled Senate for a public hearing about Justice Department activities.
Democratic politicians welcomed the news. "We must engage in all surveillance necessary to prevent acts of terrorism, but we can and should do so in ways that protect the basic rights of all Americans including the right to privacy," Vermont Sen. Patrick Leahy, the head of the Judiciary committee, said in a statement. "The issue has never been whether to monitor suspected terrorists, but doing it legally and with proper checks and balances to prevent abuses."
In addition, the Bush administration signaled on Wednesday that it would use the announcement to delay or derail lawsuits that arose out of the NSA program. In a letter sent to the 6th Circuit Court of Appeals, the government said it will file legal briefs "addressing the implications of this development on the litigation." (One federal judge already has ruled the program to be unconstitutional.)
Cindy Cohn, legal director of the Electronic Frontier Foundation in San Francisco, said it's too early to say whether her group's lawsuit against AT&T would be affected. "It's too early for us to comment," Cohn said. "I don't think we can say anything definitive one way or another."
That lawsuit, which a federal judge let proceed on November 17, claims that the telecommunications company unlawfully opened its networks to the NSA. AT&T has not confirmed or denied participating, though one of its lobbyists has pointedly described "very specific federal statutes that prescribe means, in black and white law, for provision of information to the government under certain circumstances."
The Foreign Intelligence Surveillance Court, created by the 1978 Foreign Intelligence Surveillance Act, is known as a secret court because its hearings are held behind closed doors and its proceedings are kept confidential. Only certain Justice Department attorneys may attend its sessions.
Bush's decision does not take effect immediately. He has renewed the NSA surveillance program every 45 days since it began shortly after the terrorist attacks of September 11, 2001, and Gonzales' letter says only that Bush has "determined not to reauthorize" it after the current period expires.
What Gonzales' letter did not do is reveal, even in general terms, how the FISA court will oversee the administration's electronic surveillance requests.
One possibility is that the secret court has approved the entire surveillance program with a blanket order for future use--and did not require the Justice Department to provide case-by-case information about eavesdropping targets. Justice Department officials refused to confirm or deny that there was a blanket order, according to a Washington Post article.
Last year, former judges of the Foreign Intelligence Surveillance Court urged Congress (http://www.nytimes.com/2006/03/29/politics/29nsa.html) to enact a law forcing the president to use the court and expressed skepticism about the executive branch's constitutional authority to bypass it.
If a blanket order exists, attorneys from groups like the EFF or American Civil Liberties Union could argue that it amounts to an unconstitutional "general warrant" of the sort used by the British against the American colonists, which was banned in the Bill of Rights.
The ACLU said it will ask the court to release information on how the new surveillance orders work. "The legality of this unprecedented surveillance program should not be decided by a secret court in one-sided proceedings," said ACLU attorney Ann Beeson. "And without a court order that prohibits warrantless wiretapping, Americans can't be sure that their private calls and e-mails are safe from unchecked government intrusion."
On January 31, the 6th Circuit is scheduled to hear the Bush administration's appeal of a case brought by the ACLU in which a trial judge declared the NSA program to be unconstitutional. The Justice Department could use Gonzales' announcement to argue the case is "moot" and should be dismissed without further proceedings.
But White House spokesman Tony Snow said Wednesday that the timing of the announcement had nothing to do with the avalanche of lawsuits. "No, no, no, no, no. No. No," Snow said (http://www.whitehouse.gov/news/releases/2007/01/20070117-5.html). "As a matter of fact, it may be interesting to see how it plays out in federal courts, but no, this is not a response." (Gonzales' letter alluded to discussions with the FISA court beginning in early 2005.)
The Foreign Intelligence Surveillance Act permits the secret court to authorize (http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001804----000-.html) telephone surveillance, Internet monitoring, and even physical "black bag jobs." It was amended by the 2001 Patriot Act to allow surveillance for terrorism-related offenses, defined as violent acts that appear to be intended "to intimidate or coerce a civilian population" or "to influence the policy of a government by intimidation."
In a statement Wednesday, House Speaker Nancy Pelosi said that "the judge's order announced today needs to be reviewed thoroughly." Pelosi earlier had called for hearings on the topic.
Another open question is whether Gonzales' letter, which talks about only the "Terrorist Surveillance Program" that Bush has publicly discussed, is meant to sweep in other eavesdropping or Internet monitoring programs that are even more highly classified.
Documents that came to light in the EFF case against AT&T suggest that the telecommunications company has opened its data network to the federal government far more than Bush or his allies have ever acknowledged publicly. One declaration ) in the case says that AT&T has created a facility "well suited to process huge volumes of data, including user content, in real time. It is thus well suited to the capture and analysis of large volumes of data for purposes of surveillance."