Behind the Surveillance Debate

A secret ruling by a federal judge has restricted the U.S. intelligence community's surveillance of suspected terrorists overseas and prompted the Bush administration's current push for "emergency" legislation to expand its wiretapping powers, according to a leading congressman and a legal source who has been briefed on the matter.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

The first public reference to the order came obliquely this week from House Minority Leader John Boehner—one of a number of senior Republicans who have been leading the White House-backed campaign to persuade Congress to rush through an expanded eavesdropping measure before it leaves for August recess at the end of this week.

He and other GOP leaders have said that the country will be at a greater risk of a terrorist attack if Congress doesn't act immediately—and they have accused Democrats of "playing politics" by balking at some of the provisions the administration is seeking.

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner said on an interview with Fox News anchor Neal Cavuto.

"This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people," Boehner added. "The Democrats have known about this for months."

Boehner's description of the scope of the ruling appears to focus on one key feature of the surveillance program—the large-scale tapping without warrants of telecommunications "switches" located in the United States; they are used to rout international calls even when both parties are overseas.  But there are indications the ruling has in some instances interfered with the National Security Agency's ability to intercept phone calls where one of the parties is in the United States, as well.

Under President Bush's original executive order creating the surveillance program after the September 11 attacks, the NSA eavesdropped on such calls (including those with at least one party inside the country) without seeking specific warrants from the FISA court.

But last January, partly in a bid to quell criticism from Democrats and civil liberties groups, the administration agreed to submit the entire surveillance program to the FISA court for review. Much about the process has never been explained publicly. But at some point after the new program began, one of the FISA judges—who, by rotation, was assigned to review the program for periodic updates—concluded that some aspects of the warrantless eavesdropping program exceeded the NSA's authority under the Foreign Intelligence Surveillance Act, the basic 1978 law that governs eavesdropping of espionage and terrorist suspects, said the lawyer who had been briefed on the ruling. The judge refused to reauthorize the complete program in the way it had been previously approved by at least one earlier FISA judge, the lawyer said, adding that the secret decision was a "big deal" for the administration.

It was only after that ruling that Director of National Intelligence Mike McConnell this spring began urging Congress to pass an emergency "fix" that would clarify and specifically grant the NSA authority to tap switches based in the United States without review by the FISA court. The administration effort has accelerated in recent weeks—and won the support of key Democratic leaders—amid warnings from the intelligence community that the country is facing greater risk of a new terrorist attack due in large part to the resurgence of Al Qaeda in Pakistan.

Congressional aides (who asked not to be identified talking about ongoing negotiations) said today that Democratic and Republican leaders of the intelligence committees met until late Tuesday night trying to reach an agreement on a short-term measure that would grant some of the enhanced authority—including the ability to tap telecommunications switches without warrants—that the administration is seeking. One stumbling block that has emerged: the administration's insistence that Attorney General Alberto Gonzales be given an expanded role to oversee the program—a particularly controversial move at the moment, given new allegations that the embattled attorney general has misled Congress about legal disputes over the surveillance program. Sen. Jay Rockefeller, the Senate Intelligence Committee chairman, said today in a statement that he has "become convinced that we must take some immediate but interim step" to expand surveillance, but that the administration proposal to grant Gonzales greater authority "is simply unacceptable."

In a conference call with reporters today, Sen. Kit Bond, a Missouri Republican and vice chairman of the Senate Intelligence Committee, lashed out at  Democrats because they are resisting language in the administration proposal that would give Gonzales a new oversight role over the program. "The Democrats don't trust anybody in the administration," Bond said when asked about the objections to expanding Gonzales's role. "They didn't like Scooter Libby, they don't like Karl Rove and most of all they don't like President Bush. I don't care who they like. We need to keep our country safe."

But Bond declined to respond when asked if it was a federal judge who created the alleged intelligence "gap" in the first place. "I can't comment on why this has occurred," Bond said, after checking with an aide about whether he could respond to a question about a ruling by a FISA judge. "But the director of national intelligence [McConnell] has said we are significantly burdened in capturing foreign communications. It is a significant new burden."