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On Hill, Anger and Calls for Hearings Greet News of Stateside Surveillance
Since the intelligence reforms of the 1970s, the NSA has adhered to tight restrictions on its activities in the United States and has devoted its efforts almost exclusively to obtaining intelligence overseas. Domestic spying, much of which is handled by the FBI, is governed by the Foreign Intelligence Surveillance Act and overseen by a special and highly secretive court that meets at Justice Department headquarters in Washington.
The order issued by Bush in 2002, however, allowed the NSA to monitor without a warrant international telephone calls, e-mails and other communications between people in the United States and those overseas. The Associated Press reported last night that Bush reauthorized the order 36 times.
A government official familiar with the NSA order said the president urged that the change be explained to only a very limited group of people on a "need-to-know" basis. That meant that, for nearly four years, only two people in the judicial branch of the U.S. government knew about the warrantless searches: U.S. District Judge Royce C. Lamberth, who presided over the Foreign Intelligence Surveillance Court at the time of the Sept. 11 terrorist attacks and rotated off the court in May 2002, and U.S. District Judge Colleen Kollar-Kotelly, who succeeded him.
The official said that then-Attorney General John D. Ashcroft and top officials in the Justice Department's Office of Intelligence Policy and Review first briefed a few key officials on the plans to change the 25-year prohibition on most domestic surveillance. In a series of meetings, officials also answered Lamberth's questions about what some informally called "the president's program," and they asserted that no information gained through warrantless surveillance would be used to gain the court's authorization for secret wiretaps and warrants.
Under the president's plan, only the presiding judge of the secret court was allowed to hear cases in which warrantless surveillance may have played a role, the government official said.
Lamberth and Kollar-Kotelly declined to comment yesterday. According to the government source, both raised questions about whether the program was constitutional but neither suggested they had a basis for asserting that Bush did not have the authority he claimed. They focused, instead, on the integrity of the Foreign Intelligence Surveillance Court.
Lamberth had previously expressed grave doubts about the White House's post-Sept. 11 interest in mixing the investigative powers of intelligence agents with those of criminal detectives and prosecutors. A showdown over the issue resulted in the only decision ever issued by the secret court's appellate panel, which ruled against Lamberth and said the president had broad powers to authorize eavesdropping to fight terrorism.
After Kollar-Kotelly became presiding FISA judge in 2002, she became concerned in the course of one case that warrantless eavesdropping in the NSA collection program could be used to develop information to be presented in the FISA court, the government source said. There appeared to be no evidence that it had happened, only an indication that it could.
As a result of her complaint to the Justice Department, an intelligence source said, the department agreed to have high-ranking officials certify -- under threat of perjury -- that information presented to the FISA court was totally independent of any information gleaned in warrantless surveillance. The New York Times reported that the NSA program was stalled while this debate took place.
The NSA program highlights an ongoing and often tense legal debate over the boundaries of presidential power. John Yoo, the former Justice Department lawyer whose legal opinion helped support the creation of the NSA surveillance program, was also instrumental in the preparation of other memos that argued that Bush had nearly unfettered authority in areas related to the war on terrorism.
Former CIA general counsel Jeffrey H. Smith said he was "not shocked" by the program or the legal arguments underpinning it, because "the theory or the belief that the president had this constitutional power has been around for a long time."
But Smith also said: "These programs always have a way of being abused, of expanding beyond the purpose for which they were created. If the president believed it, he could have gotten authority to do it in the Patriot Act. By avoiding that course, in so doing, he may ultimately wind up eroding the very power he seeks to assert."
Some prominent Republicans defended the surveillance, arguing it was necessary to combat terrorism. "I don't agree with the libertarians," said Sen. Trent Lott (R-Miss.). "I want my security first. I'll deal with all the details after that."
Staff writers Carol D. Leonnig, Barton Gellman and R. Jeffrey Smith and researcher Julie Tate contributed to this report.