How the Fight for Vast New Spying Powers Was Won

"All of a sudden, the world flipped upside down," said a senior administration official familiar with the rulings. The official declined to be identified by name, citing the confidentiality of court decisions involving the Foreign Intelligence Surveillance Act.

The decisions had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber on U.S. soil, a task so time-consuming that a backlog developed. "We shoved a lot of warrants at the court" but still could not keep up, the official said. "We needed thousands of warrants, but the most we could do was hundreds." The official depicted it as an especially "big problem" by the end of May, in which the NSA was "losing capability."

McConnell even appealed directly to the FISA court, meeting with judges to describe the impact the decisions were having. The judges were sympathetic but said they believed that the law was clear. "They said, 'We don't make legislation -- we interpret the law,' " the senior administration official said.

The rulings -- which were not disclosed publicly until the congressional debate this month -- represented an unusual rift between the court and the U.S. intelligence community. They led top intelligence officials to conclude, a senior official said, that "you can't tell what this court is going to do" and helped provoke the White House to insist that Congress essentially strip the court of any jurisdiction over U.S. surveillance of communications between foreigners.

The opening shot in the administration's campaign was a bill sent to Capitol Hill on April 27; officials said it had been in the works since a public controversy erupted in late 2005 over the administration's "Terrorist Surveillance Program" involving warrantless surveillance of communications between Americans and terrorism suspects overseas.

The administration's 66-page measure was put together by an interagency group of lawyers headed by Benjamin A. Powell, the general counsel for the director of national intelligence (DNI). Powell, who had once worked in electronic surveillance programs for the FBI and the Air Force, joined the office of the DNI last year after helping shape the administration's intelligence policy as a White House associate counsel and special adviser to the president.

On May 1, McConnell appeared before the Senate Select Committee on Intelligence to press for action on amendments to the Foreign Intelligence Surveillance Act. The 30-year-old statute was badly behind the times, failing to take into account modern communication methods, he said. "We are actually missing a significant portion of what we should be getting," McConnell told the senators.

McConnell and other officials ultimately briefed about 250 lawmakers on the issue and encountered little resistance to their proposed repair for surveillance involving purely foreign communications. Sen. John D. Rockefeller IV (D-W.Va.), the intelligence committee chairman, who had received some of the first detailed briefings on the surveillance program, called Vice President Cheney in late June to explore options.

"I want to move forward," he said. But Democratic leaders wanted something in return: the release of long-sought administration documents describing the controversial warrantless wiretapping program Bush had authorized in the weeks after the Sept. 11, 2001, terrorist attacks.

The administration declined to release the documents, which include Bush's presidential order allowing the wiretaps, as well as the administration's legal opinions justifying the action. Administration officials described a particular showdown with key Democratic leaders -- including Rockefeller and Carl M. Levin (Mich.), chairman of the Senate Armed Services Committee, in which Democrats proposed a trade of sorts.

While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no." McConnell argued that the Democrats were "looking backwards" and that he was the "forward-looking guy," a witness said.

A critical moment for the Democrats came on July 24, when McConnell met in a closed session with senators from both parties to ask for urgent approval of a slimmed-down version of his bill. Armed with new details about terrorist activity and an alarming decline in U.S. eavesdropping capabilities, he argued that Congress had days, not weeks, to act.