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 approval.
A review of Justice Department reports to Congress shows that the26-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 least18,740 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 available.
The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.
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" tracked75,000 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."
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