Secret court modified wiretap requests;
Intervention may have led Bush to bypass panel.
Saturday, December 24, 2005
By STEWART M. POWELL
SEATTLE POST-INTELLIGENCER WASHINGTON BUREAU
WASHINGTON -- Government records show that the administration was
encountering unprecedented second-guessing by the secret federal
surveillance court when President Bush decided to bypass the panel and
order surveillance of U.S.-based terror suspects without the court's
A review of Justice Department reports to Congress shows that the
26-year-old Foreign Intelligence Surveillance Court modified more
wiretap requests from the Bush administration than from the four
previous presidential administrations combined.
The court's repeated intervention in Bush administration wiretap
requests may explain why the president decided to bypass the court
nearly four years ago to launch secret National Security Agency spying
on hundreds and possibly thousands of Americans and foreigners inside
the United States, according to James Bamford, an acknowledged
authority on the supersecret NSA, which intercepts telephone calls,
e-mails, faxes and Internet communications.
"They wanted to expand the number of people they were eavesdropping
on, and they didn't think they could get the warrants they needed from
the court to monitor those people," said Bamford, author of "Body of
Secrets: Anatomy of the Ultra-Secret National Security Agency" and
"The Puzzle Palace: Inside America's Most Secret Intelligence
Organization." "The FISA court has shown its displeasure by tinkering
with these applications by the Bush administration."
Bamford offered his speculation in an interview last week.
The 1978 Foreign Intelligence Surveillance Act, adopted by Congress in
the wake of President Nixon's misuse of the NSA and the CIA before his
resignation over Watergate, sets a high standard for court-approved
wiretaps on Americans and resident aliens inside the United States.
To win a court-approved wiretap, the government must show "probable
cause" that the target of the surveillance is a member of a foreign
terrorist organization or foreign power and is engaged in activities
that "may" involve a violation of criminal law.
Faced with that standard, Bamford said, the Bush administration had
difficulty obtaining FISA court-approved wiretaps on dozens of people
within the United States who were communicating with targeted al-Qaida
suspects inside the United States.
The 11-judge court that authorizes FISA wiretaps has approved at least
18,740 applications for electronic surveillance or physical searches
from five presidential administrations since 1979.
The judges modified only two search warrant orders out of the 13,102
applications that were approved over the first 22 years of the court's
operation. In 20 of the first 21 annual reports on the court's
activities up to 1999, the Justice Department told Congress that "no
orders were entered (by the FISA court) which modified or denied the
requested authority" submitted by the government.
But since 2001, the judges have modified 179 of the 5,645 requests for
court-ordered surveillance by the Bush administration. A total of 173
of those court-ordered "substantive modifications" took place in 2003
and 2004 -- the most recent years for which public records are
The judges also rejected or deferred at least six requests for
warrants during those two years -- the first outright rejection in the
Attorney General Alberto Gonzales said last week that Bush authorized
NSA surveillance of overseas communications by U.S.-based terror
suspects because the FISA court's approval process was too cumbersome.
The Bush administration, responding to concerns expressed by some
judges on the 11-member panel, agreed last week to give them a
classified briefing on the domestic spying program. U.S. District
Judge Malcolm Howard, a member of the panel, told CNN that the Bush
administration agreed to brief the judges after U.S. District Judge
James Robertson resigned from the FISA panel, apparently to protest
Bush's spying program.
Bamford, 59, a Vietnam-era Navy veteran, likens the Bush administra-
tion's domestic surveillance without court approval to Nixon-era
abuses of intelligence agencies.
NSA and previous eavesdropping agencies collected duplicates of all
international telegrams to and from the United States for decades
during the Cold War under a program code-named "Shamrock" before the
program ended in the 1970s. A program known as "Minaret" tracked
75,000 Americans whose activities had drawn government interest
between 1952 and 1974, including participation in the anti-war
movement during the Vietnam War.
"NSA prides itself on learning the lessons of the 1970s and obeying
the legal restrictions imposed by FISA," Bamford said. "Now it looks
like we're going back to the bad old days again."
Copyright 1998-2005 Seattle Post-Intelligencer
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