Senators demanded details Thursday from Attorney General Alberto Gonzales about new orders putting the government’s domestic spying program under court review Ã¢â‚¬â€ and questioned why it took so long to do so.
Meanwhile, the presiding judge of the Foreign Intelligence Surveillance Court said she had no objection to disclosing legal orders and opinions about the program that targets people linked to al-Qaida, but the Bush administration would have to approve release of the information.
Gonzales and National Intelligence Director John Negroponte said it was uncertain whether the court orders and details about the program will be disclosed.
Negroponte, testifying before the House Intelligence Committee, said there may be separation of powers issues involved in turning over information to Congress about the program.
At issue is how the secret panel of judges will consider evidence when approving government requests to monitor suspected al-Qaida agents’ phone calls and e-mails between the United States and other countries.
Until last week, the National Security Agency conducted the surveillance without a court warrant. But the Justice Department announced Wednesday that the FISA court, as it is known, began overseeing the program with a Jan. 10 order.
Gonzales, testifying Thursday front of the Senate Judiciary Committee, said he may not be able to release details of the order.
“Are you saying that you might object to the court giving us a decision that you publicly announced?” committee chairman Sen. Patrick Leahy, D-Vt., asked. “Are we Alice in Wonderland here?”
Responding, Gonzales said “there is going to be information about operational details about how we’re doing this that we want to keep confidential,” he said.
Sen. Arlen Specter, R-Pa., questioned whether the orders give the FISA court a programmatic or blanket authority to approve all wiretapping requests. Although Justice Department attorneys have assured him wiretapping warrants would target individuals, Specter said that “we need to know more on the oversight process.”
He also needled Gonzales on why the spying program was only last week put under judicial review after the Bush administration acknowledged its existence, amid a public outcry of criticism, a little over a year ago.
“It is little hard to see why it took so long,” said Specter, noting that Republicans lost control of Congress elections last fall that were widely seen as a repudiation of administration policy. “The heavy criticism the president took on the program was very harmful in the political process, and for the reputation of the country,” Specter said.
Bush secretly authorized the program shortly after the Sept. 11, 2001, terror attacks and vigorously defended it as essential to national security after it was revealed in December 2005. He will not reauthorize the program once it expires, officials said.
The FISA court already has approved at least one warrant to conduct surveillance involving a person suspected of having ties to al-Qaida or an associated terror group.
In a letter released at the Senate hearing, FISA Court Presiding Judge Colleen Kollar-Kotelly, said she has no objection to giving lawmakers copies of orders and opinions relating to the secret panel’s oversight of the spy program.
“However, the court’s practice is to refer any requests for classified information to the Department of Justice. In this instance, the documents that are responsive to your request contain classified information and, therefore, I would ask you to discuss the matter with the attorney general or his representatives,” Kollar-Kotelly wrote in the Jan. 17 letter.
If allowed, the Court will, of course, cooperate with the agreement,” she wrote.
Administration officials went to extraordinary lengths Thursday to avoid clarifying how the Justice Department will target suspects for the FISA court to consider.
“I’d like to know if there’s an intention to do this on an individual basis, or at least on a case-by-case basis where five, six, ten, 20, 100 individuals are involved, or is it broader brush than that?” said Sen. Charles Schumer, D-N.Y. “Because if it’s a very broad brush approval and again, because it’s secret we have no way of knowing, it doesn’t do much good.”
“They meet the legal requirements under FISA,” Gonzales said.
“I think we have to assume these are broad program warrants, barring some comment from you,” Schumer responded. He added: “If it’s a broad program warrant, it really isn’t very satisfying in terms of protection that the Constitution requires.”
Gonzales later added that the warrants go “above and beyond what we normally find in a FISA order to ensure that any information that shouldn’t be collected is destroyed in an appropriate way.”
Officials would not say whether case-by-case basis decisions on surveillance of Americans are now made by FISA judges or by NSA officials.
Last August, a federal judge in Detroit declared the spying program unconstitutional, saying it violated the rights to free speech and privacy and the separation of powers. In October, a three-judge panel of the Cincinnati-based appeals court ruled that the administration could keep the program in place while it appeals the Detroit decision.
That appeal, which was scheduled to be heard on Jan. 31, will now likely be rendered moot, said one Justice Department official who spoke on condition of anonymity because the government has not yet officially decided whether to drop its case.
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