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U.s. Ceases Warrantless Spy Operation

Domestic surveillance will be conducted only with a court order.

Bush Won't Reauthorize

The move seems to be a concession to political and legal challenges.

January 18, 2007|Richard B. Schmitt and Greg Miller | Times Staff Writers

WASHINGTON — The Bush administration, reversing itself on one of its most controversial counterintelligence measures, said Wednesday that it would no longer secretly eavesdrop on the international calls of terrorism suspects in this country without first getting a court order.

The so-called Terrorist Surveillance Program was launched weeks after the Sept. 11 attacks and remained secret until it was exposed in news reports in late 2005, provoking a public outcry. The program was cited by civil liberties groups and others as a leading example of how the administration's war on terrorism was infringing on privacy rights of ordinary citizens.

The change, announced in a letter from U.S. Atty. Gen. Alberto R. Gonzales to senior members of the Senate Judiciary Committee, appears to be a concession to mounting political and legal challenges to the program.

The administration had been attempting to get congressional authority for the National Security Agency's warrantless eavesdropping, but the chances of that happening in a Democratic Congress are considered slim. And legal challenges to the program are working their way through the courts.

Gonzales said the administration already had obtained "orders" from a special court that reviews surveillance requests, allowing it to continue the wiretapping in some form. But it was not clear whether the secret tribunal, known as the FISA court after the Foreign Intelligence Surveillance Act that created it, had agreed to give the administration substantial latitude or whether major changes were made.

After the existence of the program was reported in the New York Times, administration officials defended the warrantless process as necessary, saying the court reviews were too cumbersome.

In his letter Wednesday, Gonzales wrote: "The orders the government has obtained will allow the necessary speed and agility while providing substantial advantages. Accordingly, under these circumstances the president has determined not to reauthorize the Terrorist Surveillance Program."

Gonzales and other officials refused to divulge details of the orders that the FISA court adopted Jan. 10. A senior Justice Department official, speaking on condition of anonymity, acknowledged there had been "modifications" in the program. But the official said the court did not grant blanket approval to the program, indicating that officials would continue to have to establish probable cause of individual links to terrorism, at least in some cases. The surveillance orders are good for 90 days and can be renewed.

White House Press Secretary Tony Snow said that the new procedures culminated a nearly two-year process begun in spring 2005, and that the shift was not in response to court action or legislation.

But Snow acknowledged that the new plan answered "political objections a number of people have been raising" about the program. He said that the congressional intelligence committees were notified last week and that the Senate Judiciary Committee was informed Wednesday.

Action applauded

Rep. Jane Harman (D-Venice), formerly the ranking Democrat on the House Intelligence Committee, said the Bush administration faced the difficulty of justifying a range of national security programs to "a much more active Congress. I think they are picking their battles and, frankly, [the wiretapping program] was a very unpopular position with the Republican base."

Harman said the reversal by the White House was not brought about by any modification to FISA. "The bottom line here is they will have to get individualized warrants if they want to listen to the communications of Americans in America," she said.

However, she added, "I'm not talking about people who are not Americans or U.S. persons." Harman declined to elaborate, saying that the details in the FISA procedures are classified. But her comment suggests that individuals who do not meet the legal definition of "U.S. persons" might fall under a more lenient legal standard that would allow the government to place them under surveillance without going through the same FISA application process.

The action was embraced Wednesday by lawmakers and civil liberties groups who said the move was an overdue recognition by the administration that it had been overstepping legal bounds.

"The announcement today is welcome news, but it is also confirmation that the administration's go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary," said Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Senate Intelligence Committee. "The president could have and should have worked with the Congress immediately following Sept. 11, 2001, to fashion a surveillance program that was in compliance with all existing statutes."

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