Ruling Limited Spying Efforts

By Carol D. Leonnig and Ellen Nakashima
Washington Post Staff Writers
Friday, August 3, 2007

A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration's wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president's spying powers.

House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court's decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.

The decision was both a political and practical blow to the administration, which had long held that all of the National Security Agency's enhanced surveillance efforts since 2001 were legal. The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court, and after it finally did so in January the court ruled that the administration's legal judgment was at least partly wrong.

The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA).

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto in a Tuesday interview.

"This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people," he said. Boehner added that some Democrats are aware of the problems caused by the judge's restrictive ruling and the problems it has caused for the administration's surveillance of terrorism suspects.

"The Democrats have known about this for months," Boehner said. "We have had private conversations, we have had public conversations that this needs to be fixed. And Republicans are not going to leave this week until this problem is addressed."

Commenting on Boehner's remarks, Rep. Rahm Emanuel (Ill.), the House Democratic Caucus chairman, said yesterday that "John should remember the old adage: Loose lips very much sink ships." But Kevin Smith, Boehner's spokesman, denied that the House Republican leader had disclosed classified information.

Any assertion that Boehner spilled secrets "is just plain wrong and distracts from the critical task at hand -- fixing FISA to close the serious intelligence gaps that are jeopardizing our national security," Smith said.

Smith said that Boehner's comments were based on a public, Jan. 17 letter to Congress by Attorney General Alberto R. Gonzales, in which the administration announced that it would allow the NSA program to be reviewed by the intelligence court. That letter said that an intelligence court judge had issued orders "authorizing the Government to target for collection into or out of the United States where there is probable cause to believe" one of the parties is a terrorist.

But the letter referred only to "approval" of a government surveillance request and did not refer, as Boehner did, to the court's rejection of surveillance of specific foreign communications routed through the United States. The NSA surveillance at issue is part of a broader program authorized by President Bush shortly after the Sept. 11, 2001, attacks. Director of National Intelligence Mike McConnell said this week in a public letter that the order covered "various intelligence activities" that he did not describe. "The details of the activities changed in certain respects over time," he said.

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