Fri, Jan 19, 2007 page7

• Judges to oversee US spying program

  NATIONAL SECURITY The shift in policy by the White House looks as if it will end a court battle over the legality of a warrantless domestic surveillance program

  • AP
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  Changing course, the Bush administration agreed to let a secret but independent panel of federal judges oversee the government's controversial domestic spying program. Officials say the secret court already has approved at least one request for monitoring.

  The shift will probably end a court fight over the legality of the warrantless surveillance program US President George W. Bush secretly ordered after the Sept. 11, 2001, terror attacks.

  Disclosure of the program a little over a year ago resulted in widespread criticism from lawmakers and civil libertarians who questioned its constitutionality.

  The program allowed the National Security Agency (NSA), without approval from the secretive Foreign Intelligence Surveillance Court, to monitor telephone calls and e-mails between the US and other countries when a link to terrorism is suspected.

  In a letter to senators on Wednesday, Attorney General Alberto Gonzales said that "any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court."

  Gonzales said Bush would not reauthorize the program once it expires. Justice Department officials later said authorization for one investigation under the warrantless program was set to expire soon, but they would not specify when.

  Justice Department officials say the court has already approved at least one warrant to conduct surveillance involving a person suspected of having ties to al-Qaeda or an associated terror group.

  After the eavesdropping program was revealed in 2005, the administration vigorously defended it as essential to national security. Although the secret court was established precisely to review requests for domestic surveillance warrants, the White House insisted that such oversight was not required by law and, in fact, would slow or stymie efforts to stop terrorists.

  From the start, Bush maintained the warrantless program's existence was "fully consistent with my constitutional responsibilities and authorities" and said he would continue to reauthorize it "for as long as our nation faces a continuing threat from al-Qaeda and related groups." Circumventing the court, he said, "enables us to move faster and quicker."

  But last August, a federal judge in Michigan declared the spying program unconstitutional, saying it violated guaranteed rights to free speech and privacy and the separation of powers, the US Constitution's allocation of specified powers to the three branches of government. In October, a three-judge panel of an Ohio-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 probably be rendered moot, said a Justice Department official who spoke on condition of anonymity because the government has not yet officially decided whether to drop its case.

  Attorneys for the department notified the appeals court in a separate letter Wednesday that "the government plans to file promptly papers ... addressing the implications of this development on the litigation."

  White House press secretary Tony Snow said the administration is satisfied with new rules adopted by the FISA court to address administration officials' concerns about national security.

  The secret court, Snow said, "has put together its guidelines and its rules and those have met administration concerns about speed and agility when it comes to responding to bits of intelligence where we may to be able to save American lives."

  Snow could not explain why those concerns were not dealt with before the program began.

  The American Civil Liberties Union (ACLU), which sued the government over the program, called the Justice Department's announcement "a quintessential flip-flop."

  "The NSA was operating illegally and this eleventh-hour ploy is clearly an effort to avoid judicial and congressional scrutiny," said ACLU executive director Anthony Romero. "Despite this adroit back flip, the constitutional problems with the president's actions remain unaddressed."
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