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Judges on Surveillance Court To Be Briefed on Spy Program

The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.

"There is a difference between detecting, so we can prevent, and monitoring. And it's important to note the distinction between the two," Bush said Monday. But he added: "If there is a need based upon evidence, we will take that evidence to a court in order to be able to monitor calls within the United States."

The American Civil Liberties Union formally requested yesterday that Gonzales appoint an outside special counsel to investigate and prosecute any criminal acts and violations of laws as a result of the spying effort.

Also yesterday, John D. Negroponte, Bush's director of national intelligence, sent an e-mail to the entire intelligence community defending the program. The politically tinged memo referred to the disclosure as "egregious" and called the program a vital, constitutionally valid tool in the war against al Qaeda.

Benson said it is too soon for him to judge whether the surveillance program was legal until he hears directly from the government.

"I need to know more about it to decide whether it was so distasteful," Benson said. "But I wonder: If you've got us here, why didn't you go through us? They've said it's faster [to bypass FISA], but they have emergency authority under FISA, so I don't know."

As it launched the dramatic change in domestic surveillance policy, the administration chose to secretly brief only the presiding FISA court judges about it. Officials first advised U.S. District Judge Royce C. Lamberth, the head of FISA in the fall of 2001, and then Kollar-Kotelly, who replaced him in that position in May 2002. U.S. District Judge George Kazen of the Southern District of Texas said in an interview yesterday that his information about the program has been largely limited to press accounts over the past several days.

"Why didn't it go through FISA," Kazen asked. "I think those are valid questions. The president at first said he didn't want to talk about it. Now he says, 'You're darn right I did it, and it's completely legal.' I gather he's got lawyers telling him this is legal. I want to hear those arguments." Judge Michael J. Davis of Minnesota said he, too, wants to be sure the secret program did not produce unreliable or legally suspect information that was then used to obtain FISA warrants.

"I share the other judges' concerns," he said.

But Judge Malcolm Howard of eastern North Carolina said he tends to think the terrorist threat to the United States is so grave that the president should use every tool available and every ounce of executive power to combat it.

"I am not overly concerned" about the surveillance program, he said, but "I would welcome hearing more specifics."

Researcher Julie Tate contributed to this report.

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