Washington – Since Sept. 11, 2001, an obscure but powerful tribunal – the Foreign Intelligence Surveillance Court – has been a solid ally of the Bush administration, approving hundreds of requests letting government agents monitor the conversations and communications of suspected terrorists.
So why did the administration go around the court in devising its secret surveillance program?
Top Bush administration officials said Monday that an eavesdropping program they devised after Sept. 11 without the court’s permission reflected the “inefficiencies” of going to a judge and the need for a more “agile” approach to detecting and preventing terrorist attacks.
But they also indicated that they had a problem with a more fundamental concern: the tougher legal standard that must be met to satisfy the surveillance court. The 1978 law creating the secret tribunal authorizes intelligence-gathering only in cases in which the government can establish “probable cause” that the target was working with terrorists.
In briefing reporters Monday, Attorney General Alberto Gonzales said President Bush’s 2002 order allowed for surveillance when officials had “a reasonable basis” to conclude that one of the parties to the communication had terrorist links. Moreover, those judgments were made not by a court, as the law provides, but by shift supervisors at the National Security Agency.
Some experts said that easier- to-satisfy standard probably was a key reason for the administration’s decision.
“It is certainly different than probable cause,” said Michael Woods, former head of the FBI’s national security law unit. “That, in my mind, is a much more likely reason why they maintained this” program.
The revelation came on a day when the administration stepped up its defense of the spying program amid growing congressional and public concern. The plan, which surfaced in reports last week, has let the government monitor, without warrants, hundreds of people in the U.S. communicating with people overseas.
While the program is new, the justification put forth by the administration is a familiar one: that the powers of the president are broad when it comes to waging war. While the 1978 law established the court as the sole judge of intelligence-gathering in the U.S., the administration said it was free to ignore the law.
Officials cited the inherent power of the president under the Constitution. They also said that Congress had at least tacitly overridden the law when it authorized Bush to engage the enemy after the attacks of Sept. 11, 2001.
But such assertions raise questions about whether there are limits to such power. “Where is the stopping point?” asked Carl Tobias, a law professor at the University of Richmond in Virginia.
In a news conference Monday, Bush said that as commander in chief, he could bypass the 1978 law that limited the government listening to the phone calls of Americans, citing a claim of executive power that has not been upheld by the Supreme Court.
“Do I have the legal authority to do this? … The answer is absolutely,” Bush said. “The legal authority is derived from the Constitution. … As president and commander in chief, I have the constitutional responsibility and constitutional authority to protect our country.”
Gonzales said he had advised Bush that he had “an inherent authority” to order the spy agency to eavesdrop on suspect phone calls, despite the legal requirement of a judicial warrant.
Asked at the news conference why the administration had not sought legislative authorization through an amendment to the foreign intelligence law, he said “we were advised that that would be difficult, if not impossible.”
The New York Times contributed to this report.
