Bush Spy Program Placed Under Court Review

By Martin H. Bosworth
ConsumerAffairs.com

January 17, 2007

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The controversial domestic surveillance plan that enabled government authorities to spy on Americans without warrants has been placed under the overview of legal authority, according to U.S. Attorney General Alberto Gonzalez.

In a letter to Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA), Gonzales said the program would now fall under the control of the Foreign Intelligence Surveillance Court (FISC).

The court already handles authorization for wiretapping operations against suspected foreign intelligence operatives, as part of the Foreign Intelligence Surveillance Act (FISA).

"Although ... the Terrorist Surveillance Program fully complies with the law, the orders the Government has obtained will allow the necessary speed and agility while providing substantial advantages," Gonzales said.

Leahy and Specter both serve on the powerful Senate Judiciary Committee. Leahy replaced Specter as chairman after the Democratic takeover of Congress, and had promised hearings into the legality of the program, as well as much more stringent oversight.

"I welcome the President's decision not to reauthorize the NSA's warrantless spying program and instead to seek approval for all wiretaps from the Foreign Intelligence Surveillance Court, as the law has required for years," Leahy 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."

Gonzales is scheduled to testify before the Judiciary Committee tomorrow, January 18th, on the issue of proper oversight of Justice Department activity. Observers speculated that the abrupt change of plans might be timed to allow Gonzales to avoid testifying under oath.

The Bush administration had previously defended the program, saying it was essential to track terrorist activity in the United States, and that requiring court approvals would take too long and would hamstring law enforcement.

Author Glenn Greenwald, a former lawyer who has extensively covered the domestic wiretapping saga, was skeptical about the sudden change of heart.

"Why couldn't the new rules simply have been instituted years ago, as part of a newly amended FISA?" he asked in his blog. "Is this magnanimous assent to comply with the law supposed to relieve them of the consequence from their lawbreaking?"

Shrouded In Secrecy

Placing the surveillance program under FISA isn't quite the same thing as making it an open book. The FISA court meets in secret, in closed hearings, and does not make transcripts of the requests or hearings available to the public.

FISA specifically allows "retroactive" warrantless searches and surveillance of potential targets, as long as the warrants are requested within 72 hours of the investigation itself.

Yet even under those rules, FISA authority was still considered too restrictive for the program. The massive wiretapping program was put into operation in late 2001, and was not disclosed until 2005.

The revelation that Americans were being spied upon without any oversight or redress prompted a storm of criticism across the political spectrum, as well as numerous lawsuits.

It was later revealed that the program was being conducted by the National Security Agency (NSA), and that the NSA had enlisted telecommunications companies like AT&T to help provide technological and security assistance with the wiretaps.

The Justice Department tried to block a suit against the NSA and AT&T on grounds that it would reveal "state secrets," but a California judge rebuffed its claim.

U.S. District Judge Anna Diggs Taylor issued an additional ruling in August finding the surveillance program was unconstitutional and should be immediately halted, but an appeals court let the program continue while the Justice Department made its case.

In an unusual bit of timing, Attorney General Gonzales recently addressed the conservative American Enterprise Institute on the topic of "activist" judges who "stretch the law to suit policy preferences," just prior to announcing the change in the surveillance program's oversight.

During the hearings to confirm him as Attorney General, Gonzales was much more complimentary of judicial oversight, saying that "[he] certainly [understood] and recognize the role of the courts in our system of government ... ultimately the judges, the courts will make the decision as to whether or not we've drawn the right balance here."

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