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Spy Court's Orders Stir Debate on Hill
Some Want Documents Made Public

By Dan Eggen
Washington Post Staff Writer
Friday, January 19, 2007

The Bush administration quickly locked horns with Democratic lawmakers yesterday over its revised domestic wiretap program, signaling that the government will probably oppose efforts to release new court orders from a clandestine court that now governs the spying.

The head of the secret court that approved the program said she has no objection to releasing the documents, but Attorney General Alberto R. Gonzales and Director of National Intelligence John D. Negroponte indicated that the administration is likely to resist.

The conflict followed the administration's announcement Wednesday that it will dismantle the controversial counterterrorism surveillance program run by the National Security Agency and instead conduct the eavesdropping under the authority of the secret Foreign Intelligence Surveillance Court, which issues warrants in spy and terrorism cases.

Yesterday's debate underscored continued skepticism among Democrats and some Republicans over the parameters and legality of the administration's surveillance efforts, even with court approval, and signaled that Congress and the executive branch are likely to continue sparring over the details.

Although the precise contours and scope of the revised spying program remain unclear, some new information emerged yesterday. Sen. Arlen Specter (Pa.), the ranking Republican on the Senate Judiciary Committee, said Justice Department briefers told him the effort was based on "individualized" warrants, rather than a blanket order that would allow broader surveillance.

Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people.

Administration officials have declined to provide details of how the new version of the program will operate, including whether the government must obtain warrants for each person targeted for surveillance. Officials say the orders from a judge of the intelligence court are "complex" and "innovative" but adhere to the limits of the Foreign Intelligence Surveillance Act (FISA), a 1978 law that governs domestic surveillance of suspected terrorists and spies.

Leading Democrats, while praising the administration's decision to conduct surveillance under court authority, said yesterday that there are still too many unanswered questions about how the program will be conducted. Specter and Sen. Patrick J. Leahy (D-Vt.), the Judiciary Committee chairman, demanded the release of the intelligence court judge's orders allowing the new program, issued Jan. 10.

Those demands were bolstered by U.S. District Judge Colleen Kollar-Kotelly, the presiding judge of the intelligence court, who wrote in a letter to Leahy and Specter that she has "no objection to this material being made available" to lawmakers.

But Kollar-Kotelly said the final decision is up to the Justice Department, because the orders include classified information.

Gonzales, appearing before the Judiciary Committee, said he could not guarantee the release of the orders because of classified-information restrictions. Negroponte told the House intelligence committee that letting the secret court turn over information about the program to Congress may violate separation-of-powers provisions.

The government program targets telephone calls and e-mails between people in the United States and others overseas if one party is suspected to have links to al-Qaeda or other terrorist groups.

Gonzales's remarks at the Judiciary Committee prompted a testy exchange with Leahy.

"Are you saying that you might object to the court giving us decisions that you've publicly announced?" Leahy asked. "Are we a little Alice in Wonderland here?"

"I'm not saying that I have objections to it being released. What I'm saying is it's not my decision to make," Gonzales responded. He added later: "There is going to be information about operational details about how we're doing this that we want to keep confidential."

Several senators also sharply questioned why it took nearly two years for the Justice Department to come up with a surveillance plan that was acceptable to the secret court.

"It is a little hard to see why it took so long," said Specter, who unsuccessfully attempted to shepherd legislation through Congress last year that would have allowed the administration to seek the court's approval for the spying. "The heavy criticism the president took on the program was very harmful in the political process and for the reputation of the country."

Gonzales argued that disclosing even the basic outlines of the program would reveal vital intelligence sources and methods to terrorist groups. He also defended the time it took for Justice lawyers to devise a plan that would pass court muster.

"This is a very complicated application," Gonzales said. "It's not something you just pull off the shelf."

Gonzales said the program adheres to FISA and that "minimization" procedures to destroy unneeded data go "above and beyond" what is required in a typical FISA case.

Gonzales said Justice Department lawyers began exploring ways to use the surveillance law for the NSA program shortly after he became attorney general in early 2005.

Another source said the department had informally floated a proposal to Kollar-Kotelly in recent months about how to resolve concerns among the intelligence court's judges that information gleaned from the president's surveillance program might taint the court's warrant process.

Kollar-Kotelly raised the same point with top Justice officials in 2005, when she was briefed on the president's domestic spying program, according to several officials familiar with the FISA process. The judge did not consider it her place to determine whether the program was constitutional, but she was very disturbed by the risk that information gleaned from warrantless wiretaps could be used in warrant applications without the court's knowledge.

Staff writers Carol D. Leonnig and Walter Pincus contributed to this report.

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