On Friday, the New York Times reported that requests for more information and discussions of hearings "are being complicated by the fact that Congressional leaders in both parties acquiesced in the operation." -- (The same applies, in a sense, to the New York Times itself, which sat on the story for a year before reporting it.) -- The White House, meanwhile is arguing "that the president's authorization of domestic spying was consistent with the 1978 law that governs the government's electronic eavesdropping," David Johnston and Neil A. Lewis reported in a separate Times story Friday. -- William E. Moschella, assistant attorney general for Congressional affairs, wrote to the chairmen of the House and Senate Intelligence Committees to say that the secret program was necessary because "the [Foreign Intelligence Surveillance Act of 1978] system 'could not have provided the speed and agility for the early warning system' demanded by President Bush," and also argued that "the administration could not have sought expanded authority from Congress under the law without risking exposure. To go to Congress for legislative authority, the department said, 'would have tipped off our enemies concerning our intelligence limitations and capabilities.'" -- But if this is so, one wonders why "one member of the 10-member Foreign Intelligence Surveillance Court has resigned [in protest]" and "the presiding judge of the panel has sought more information from the Justice Department and intelligence agencies about why the government seemingly ignored the court and the federal statutes that require the court's approval for electronic monitoring in national security cases on American soil," as Johnston and Lewis also report. -- The White House is also citing the Sept. 14, 2001, Congressional declaration as a basis for its authority, though that resolution said nothing about spying. -- Nevertheless, Moschella argued, "because 'throughout history, signals intelligence has formed a critical part of waging war,'" the president had the power to initiate the secret program. -- The problem with this argument is that it so broad as to amount to a constitutional revolution, and an instauration of the Imperial Presidency as the basis for our system of government: under it, much of the Constitution and its Bill of Rights is defunct. -- Eric Lichtblau, who co-wrote the original Dec. 15 Times article that broke the story, is cited as contributing to this piece, which like the Dec. 15 article cites "officials [who] spoke on the condition of anonymity because of the subject matter, which usually involves sensitive or classified material -- perhaps the same officials that the administration is suggesting are guilty of a crime for revealing the existence of the program. -- Thanks to their revelations, it is now known, the Times reports, that FISA judges "sometimes privately expressed suspicions that law enforcement officials were trying to use the FISA procedures, which required lower standards to obtain a warrant than would be in effect in a criminal case, to gather information for a criminal prosecutions." ...
AMONG THOSE TOLD OF PROGRAM, FEW OBJECTED
By Douglas Jehl
New York Times
December 23, 2005
WASHINGTON -- As members of Congress seek more information about the eavesdropping program authorized by President Bush, their requests are being complicated by the fact that Congressional leaders in both parties acquiesced in the operation.
Only the Senate Judiciary Committee, under Arlen Specter, Republican of Pennsylvania, has pledged to hold hearings on the program, which was first publicly disclosed a week ago. Democrats are urging that the House and Senate Intelligence Committees conduct inquiries, but the Republicans who control those panels have not agreed to do so.
Some Republicans are suggesting that it is disingenuous to complain now about the eavesdropping effort.
"The record is clear; Congressional leaders at a minimum tacitly supported the program," Representative Peter Hoekstra of Michigan, the chairman of House Intelligence Committee, said this week. Mr. Hoekstra said Democrats should "attempt to understand why their leaders did not feel the same sense of outrage about the program" that some in the party are now expressing.
Senator Pat Roberts of Kansas, the chairman of the Senate Intelligence Committee, has said only that he is "currently in discussions with Senate leadership to determine what form additional oversight should take."
Senator John D. Rockefeller IV of West Virginia, the top Democrat on the committee, released a letter this week that he sent to Vice President Dick Cheney in 2003 expressing concern about the program.
But Senator Roberts issued a statement on Tuesday saying that he had "no recollection of Senator Rockefeller objecting to the program at the many briefings he and I attended together," and that "on many occasions Senator Rockefeller expressed to the vice president his vocal support for the program; his most recent expression of support was only two weeks ago."
At least seven Democratic lawmakers are known to have been briefed about the program since its inception in 2001, and only two, Mr. Rockefeller and Representative Nancy Pelosi of California, are known to have expressed written concern about it. A third, Tom Daschle of South Dakota, the former Senate Democratic leader, said in an e-mail message on Thursday that he too had expressed "grave concern for this practice" of eavesdropping on American citizens inside the United States.
Among the others, Representative Jane Harman of California, the top Democrat on the House Intelligence Committee, acknowledged in a statement this week that she had been briefed about the program since 2003 and regarded it as "essential to U.S. national security." Ms. Harman also said, however, that she was "deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed."
Congressional aides from both parties said Thursday that their leaders were weighing a number of options for further inquiries into the matter. In the Senate, Mr. Specter and Mr. Roberts were said to be talking with Senator Bill Frist of Tennessee, the Republican leader, about a possible division of labor between their committees. But they said it was unlikely that any hearings would be held until Congress convenes again in late January.
The program, authorized by President Bush, involves eavesdropping without warrants on international communications involving American citizens in the United States. Critics, including Mr. Specter, have expressed doubts about whether the program was legal under the Foreign Intelligence Surveillance Act, a question he says should be explored by the Judiciary Committee, even if there is a separate review by the Congressional intelligence panels.
Among the options being weighed are parallel inquiries, in which the Judiciary Committee in the Senate would hold open hearings, beginning with testimony by Attorney General Alberto R. Gonzales, while the Senate Intelligence Committee would hold closed hearings to explore the classified details of the intelligence-gathering operation. Another course proposed by some lawmakers would consolidate any inquiry so that it would be conducted jointly by the judiciary and intelligence panels.
Members of Congress who were not previously briefed about the program have been far more vociferous in expressing opposition to it. One of them, Representative Rush D. Holt of New Jersey, a Democrat on the House Intelligence Committee, said the administration had shown "absolute contempt for Congressional oversight by concealing, for years after the fact and from all but a tiny handful of House and Senate leaders, its use of the National Security Agency to spy on Americans."
The White House has said the dozen or so briefings about the program it provided to a small group of Congressional leaders were intended to provide notification, not to seek the lawmakers' consent. None among the seven Republicans known to have been briefed have expressed any opposition to the program. The three Democratic members of Congress who have said publicly this week that they had objected to the program have said there was no indication that their objections were heeded.
Ms. Pelosi, a former top Democrat on the House Intelligence Committee who is now the House Democratic leader, has said that she, like Mr. Rockefeller, expressed her concerns in a letter to the administration. But Ms. Pelosi has said that she cannot make the letter public until the administration agrees to declassify it.
Mr. Daschle, in his e-mail message, said he had "expressed my concern during the briefing," rather than in written form, and declined to discuss the timing of his action.
In addition to Ms. Harman, the Democrats who have said they did not express objections when they were briefed on the program include Senator Harry Reid of Nevada, the Democratic leader, and Bob Graham, the former Democratic senator from Florida who served as Intelligence Committee chairman. Richard A. Gephardt of Missouri, the former Democratic leader in the House, has not responded to telephone messages requesting comment.
Ms. Harman, Mr. Reid, and Mr. Graham have all suggested in recent days that they were not provided with a complete accounting of the program, and that they might have raised objections if they had understood its scope.
The administration has said the surveillance program was limited to communications between the United States and points overseas, but Ms. Harman has expressed particular concern about "domestic-to-domestic surveillance" that technical experts say would almost certainly have occurred, in the form of telephone conversations or e-mail messages intercepted inadvertently.
The White House
DEFENDING SPY PROGRAM, ADMINISTRATION CITES LAW
By David Johnston and Neil A. Lewis
New York Times
December 23, 2005
WASHINGTON -- In its first formal response to Congress on the growing controversy over domestic spying, the Bush administration argued Thursday that the president's authorization of domestic spying was consistent with the 1978 law that governs the government's electronic eavesdropping.
The letter to Congress, which was signed by William E. Moschella, assistant attorney general for Congressional affairs, said the administration considered the Foreign Intelligence Surveillance Act, and the court established through it, "a very important tool" in fighting terrorism and "makes full use" of it.
But the letter, which was sent to the chairmen of the House and Senate Intelligence Committees, said the system "could not have provided the speed and agility for the early warning system" demanded by President Bush.
It also argued that the administration could not have sought expanded authority from Congress under the law without risking exposure. To go to Congress for legislative authority, the department said, "would have tipped off our enemies concerning our intelligence limitations and capabilities."
The letter came as simmering tensions between the Justice Department and the secretive intelligence court that authorizes wiretaps and searches in national-security and terrorism cases spilled into public view with the disclosure of the domestic surveillance program.
In what is emerging as a burgeoning protest and a potentially serious problem for the Bush administration, one member of the 10-member Foreign Intelligence Surveillance Court has resigned. In addition, the presiding judge of the panel has sought more information from the Justice Department and intelligence agencies about why the government seemingly ignored the court and the federal statutes that require the court's approval for electronic monitoring in national security cases on American soil.
The first sign that some of the judges on the court were angry came on Monday with the resignation of Judge James Robertson of Federal District Court in the District of Columbia, first reported in the *Washington Post*, as was the demand for more information. He was appointed to a federal judgeship in 1994 by President Bill Clinton. He will keep his seat on the bench, government officials said.
Later, the chief judge on the FISA court, Judge Colleen Kollar-Kotelly, who was appointed to the bench in 1997 by Mr. Clinton, began an effort to arrange a classified briefing for other court members so the administration could explain why it sidestepped the court, the officials said.
In defending their actions, Mr. Bush and his chief legal advisers, including Attorney General Alberto R. Gonzales, have said the law allowed them to sidestep the court in some instances. Mr. Gonzales said at a news conference this week that the law establishing the intelligence court applied to eavesdropping operations in the United States "unless otherwise authorized by statute or by Congress." In this case, he said, the electronic monitoring was authorized under a broadly worded Congressional resolution approved a week after the 9/11 attacks.
The letter on Thursday from Mr. Moschella provided a similar but more detailed argument that the program was consistent with the Foreign Intelligence Surveillance Act. He said that the act explicitly provides that domestic eavesdropping must be conducted under the law but that it contained an exception that would allow eavesdropping if authorized by another statute. The Authorization to Use Military Force enacted by Congress after the Sept. 11 attacks serves as that statute.
The letter said the authorization to use force included the ability to eavesdrop because "throughout history, signals intelligence has formed a critical part of waging war." The Congressional authorization for the president to protect American citizens, it said, "cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy," adding, "We can't fight a war blind."
One element of the debate is certain to be whether Congress intended to authorize eavesdropping without warrants when it enacted the authorization to use force, as the administration has argued.
It is not altogether evident why the government has viewed the FISA court as an obstacle. The annual statistical summary provided by the court shows that the panel has overwhelmingly approved the warrants sought by the Justice Department. From 1995 to 2004, the court received 10,617 warrant applications, according to figures compiled by the Federation of American Scientists. It turned down only four, all in 2003 for unexplained reasons.
But the statistics mask a more robust and adversarial relationship between the FISA court and Justice Department lawyers who appear before it in secret sessions, creating tensions that the eavesdropping program has forced to the surface. Officials who have been briefed on the FISA process said that the government regularly withdrew or modified applications when it appeared the judges might disapprove them.
The officials spoke on the condition of anonymity because of the subject matter, which usually involves sensitive or classified material.
Before the September 2001 attacks, Justice Department officials said that the law and the department's own legal interpretations, which went beyond the requirements of the statutes, had created a confusing maze of regulations that often stymied investigations of suspected terrorists because of what became known as a legal "wall." The wall was a legal barrier that was said by F.B.I. agents to prevent national security investigators and criminal investigators from sharing information about the same suspects each was tracking.
Some agents complained that the FISA court's cumbersome submission requirements and insistence on strict adherence to the law had contributed to the impression that the court itself was an obstacle to aggressive investigation of terror cases. As an example, these agents suggested F.B.I. lawyers did not seek a FISA warrant in the case of Zacarias Moussaoui, who was arrested shortly before the 2001 attacks, in part because they believed the court would reject it.
The USA Patriot Act, adopted after the attacks, made information sharing easier, but until then, officials said, the special court had in fact closely monitored applications for special search or wiretap authorizations. For their part, FISA judges sometimes privately expressed suspicions that law enforcement officials were trying to use the FISA procedures, which required lower standards to obtain a warrant than would be in effect in a criminal case, to gather information for a criminal prosecutions, according to officials briefed on the subject.
The legal debate first became public in November 2002 when a special federal appeals court, established for the sole purpose of hearing cases brought up from the FISA court, ruled that the Patriot Act no longer set up a wall that legally blocked information sharing. The court added that it now believed that the barrier had been a false wall that had never been necessary or legally required.
Judge Royce C. Lamberth of Federal District, who had been the chief judge of the FISA court but no longer sits on the panel, has said publicly that he had often acted quickly to consider requests by officials. He said that after the bombings of United States Embassies in Africa in 1998, he held his first emergency sessions in his living room at 3 a.m. to review applications.
He recounted that while he was mowing his lawn the first weekend in April, "I had to stop and do seven emergency hearings with four carloads of agents in the driveway." His wife was obliged to go upstairs when he considered emergency applications, Judge Lamberth said, because she lacked the necessary security clearance, but his cocker spaniel remained by his side.
In one speech, Judge Lamberth gave some indication of how law enforcement officials might have felt there were obstacles to obtaining warrants. He said that when someone from the Justice Department makes an application, the agent making the request is put under oath, and, "I ask questions and get into the nitty-gritty."
--Eric Lichtblau contributed reporting for this article.