By Dan Eggen
Washington Post Staff Writer
Thursday, January 18, 2007; A01
The Bush administration said yesterday that it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort that will be overseen by the secret court that governs clandestine spying in the United States.
The change -- revealed by Attorney General Alberto R. Gonzales in a letter to the leaders of the Senate Judiciary Committee -- marks an abrupt reversal by the administration, which for more than a year has aggressively defended the legality of the NSA surveillance program and disputed court authority to oversee it.
Under the new plan, Gonzales said, the secret court that administers the Foreign Intelligence Surveillance Act, or FISA, will oversee eavesdropping on telephone calls and e-mails to and from the United States when "there is probable cause to believe" that one of the parties is a member of al-Qaeda or an associated terrorist group.
Under the previous approach, such intercepts were authorized by intelligence officers without the involvement of any court or judge -- prompting objections from privacy advocates and many Democrats that the program was illegal.
Administration officials suggested that the move was aimed in part at quelling persistent objections to the NSA spying by Democrats who now control Congress and that it is intended to slow or even derail challenges making their way through the federal courts. The Justice Department immediately filed a notice with the U.S. Court of Appeals for the 6th Circuit yesterday informing the panel of the new program and promising to file papers "addressing the implications of this development" on pending litigation.
Some Justice officials also said that receiving approval from the secret court will enable authorities to more easily use the information they obtain in future criminal prosecutions.
But many details of the new approach remained unclear yesterday, because administration officials declined to describe specifically how the program will work.
Officials would not say, for example, whether the administration will be required to seek a warrant for each person it wants to monitor or whether the FISA court has issued a broader set of orders to cover multiple cases. Authorities also would not say how many court orders are involved or which judge on the surveillance court had issued them.
One official familiar with the discussions characterized the change as "programmatic," rather than based on warrants targeting specific cases. This official, who spoke on the condition of anonymity, said the judge who issued the Jan. 10 order was not U.S. District Judge Colleen Kollar-Kotelly, the FISA panel's chief judge, but rather one of that court's rotating members who was assigned to hear cases that week.
President Bush first issued a secret order in October 2001 authorizing the NSA to monitor telephone calls and e-mail between the United States and overseas if one party was thought to be linked to al-Qaeda or related groups. The initiative, revealed publicly by the New York Times in December 2005, was later dubbed the "Terrorist Surveillance Program" by the administration.
Many Democrats and privacy advocates who had questioned the legality of the program argued yesterday that the administration had effectively conceded defeat by agreeing to place its surveillance efforts under the secret judicial panel whose members approve wiretaps and searches under FISA.
"The issue has never been whether to monitor suspected terrorists but doing it legally and with proper checks and balances to prevent abuses," said Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee. "Providing efficient but meaningful court review is a major step toward addressing those concerns."
Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Senate intelligence committee, said the decision was "confirmation that the administration's go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary."
Rockefeller, who had secretly lodged an early challenge to the NSA program in a confidential letter to Vice President Cheney, said the committee still intends to investigate the program's legality and effectiveness.
Rep. Heather A. Wilson (R-N.M.), a member of the House intelligence panel, also referred to the new approach as "programmatic approval" and said it "does not have the protections for civil liberties" in FISA or in a bill she introduced last year.
In his letter to lawmakers, Gonzales said that the administration has been exploring ways to seek approval from the surveillance court since spring 2005 but that "it took considerable time and work to develop" an approach that "would have the speed and agility necessary to protect the nation from al-Qaeda." An unidentified judge on the FISA court issued orders on Jan. 10 that effectively bring the NSA program under the secret court's authority, Gonzales wrote.
He and other administration officials had argued that operating the NSA spying program through the surveillance court would be slow and cumbersome. Justice officials released statistics yesterday showing improvements in the amount of time it takes to obtain intelligence warrants.
White House and Justice officials said the president was not retreating from his stance that he has the constitutional and legislative authority to order warrantless surveillance on international calls but said the new rules promulgated by the surveillance court have satisfied concerns about whether the FISA process can move quickly enough to authorize surveillance.
"They moot any questions we have had in the past about speed and agility," White House press secretary Tony Snow said. "We're satisfied that this will be effective. We found a happy agreement that allows the whole thing to be placed under the FISA court."
Another official, not authorized to discuss the matter publicly, said both the director of national intelligence and the head of the NSA "have assured the president that the program and that the capabilities to protect this country remain intact under this new order."
Some Democrats remained critical of the secretive process that resulted in yesterday's announcement. Some staff members of the Senate and House intelligence committees were briefed on the plans last week, officials said, but the Judiciary panel was not notified until yesterday.
"This announcement can give little solace to the American people, who believe in the rule of law and ask for adequate judicial review," said Sen. Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee. "And why it took five years to go to even this secret court is beyond comprehension."
Anthony D. Romero, executive director of the American Civil Liberties Union, which has been sharply critical of the NSA spying program, called the decision "an adroit back flip" by the Bush administration.
"It's clearly a flip-flop because they saw the writing on the wall," Romero said. "But it still does not address questions about whether the president broke the law. Complying with FISA now does not make his actions over the last 4 1/2 years legal."
Even before it was revealed publicly, the NSA program had infuriated Kollar-Kotelly and some other members of the FISA court, who questioned the program's legality and who warned the Justice Department that it could not use information from such monitoring to obtain warrants under FISA.
Advocacy groups filed lawsuits challenging the legality of the NSA surveillance. In August, U.S. District Judge Anna Diggs Taylor in Detroit ruled that the program was unconstitutional and should be halted. The government took the case to the 6th Circuit in Cincinnati, which allowed the program to continue on appeal and is scheduled to hear arguments in the case on Jan. 31.
The fight over the NSA program also raged in Congress, which did not act last year on dueling proposals to authorize the surveillance. A proposal by Sen. Arlen Specter (R-Pa.), then chairman of Judiciary, would have allowed -- but not required -- the administration to receive blanket approval for the program from the FISA court.
In a background briefing with reporters, one Justice Department official said the change to FISA oversight is likely to have a "significant impact" on a number of the court cases now pending, particularly lawsuits seeking to halt a program that is now being abandoned.
The official also said the administration hopes that the change will slow attempts by Congress to hold hearings on the NSA program. "This should remove or take away the heat or need for such a debate," the official said.
Officials said that Bush has issued orders every 45 days to reauthorize the NSA surveillance program and that he will not seek to renew it when the current term expires. The new orders from the FISA court will last 90 days, officials said.
Gonzales had been mum on the topic during media and public appearances in recent days, including a speech yesterday during which he contended that federal judges are unqualified to decide terrorism issues best handled by Congress or the president. Gonzales is scheduled to appear today before the Senate Judiciary Committee.
Staff writers Michael Abramowitz, Dafna Linzer and Carol Leonnig and staff researcher Julie Tate contributed to this report.