U.S. CEASES WARRANTLESS SPY OPERATION

The Bush administration, reversing itself on one of its most controversial counterintelligence measures, said Wednesday that it would no longer secretly eavesdrop on the international calls of terrorism suspects in this country without first getting a court order.

The so-called Terrorist Surveillance Program was launched weeks after the Sept. 11 attacks and remained secret until it was exposed in news reports in late 2005, provoking a public outcry. The program was cited by civil liberties groups and others as a leading example of how the administration’s war on terrorism was infringing on privacy rights of ordinary citizens.

The change, announced in a letter from U.S. Atty. Gen. Alberto R. Gonzales to senior members of the Senate Judiciary Committee, appears to be a concession to mounting political and legal challenges to the program.

The administration had been attempting to get congressional authority for the National Security Agency’s warrantless eavesdropping, but the chances of that happening in a Democratic Congress are considered slim. And legal challenges to the program are working their way through the courts.

Gonzales said the administration already had obtained “orders” from a special court that reviews surveillance requests, allowing it to continue the wiretapping in some form. But it was not clear whether the secret tribunal, known as the FISA court after the Foreign Intelligence Surveillance Act that created it, had agreed to give the administration substantial latitude or whether major changes were made.

After the existence of the program was reported in the New York Times, administration officials defended the warrantless process as necessary, saying the court reviews were too cumbersome.

In his letter Wednesday, Gonzales wrote: “The orders the government has obtained will allow the necessary speed and agility while providing substantial advantages. Accordingly, under these circumstances the president has determined not to reauthorize the Terrorist Surveillance Program.”

Gonzales and other officials refused to divulge details of the orders that the FISA court adopted Jan. 10. A senior Justice Department official, speaking on condition of anonymity, acknowledged there had been “modifications” in the program. But the official said the court did not grant blanket approval to the program, indicating that officials would continue to have to establish probable cause of individual links to terrorism, at least in some cases. The surveillance orders are good for 90 days and can be renewed.

White House Press Secretary Tony Snow said that the new procedures culminated a nearly two-year process begun in spring 2005, and that the shift was not in response to court action or legislation.

But Snow acknowledged that the new plan answered “political objections a number of people have been raising” about the program. He said that the congressional intelligence committees were notified last week and that the Senate Judiciary Committee was informed Wednesday.

Action applauded

Rep. Jane Harman (D-Venice), formerly the ranking Democrat on the House Intelligence Committee, said the Bush administration faced the difficulty of justifying a range of national security programs to “a much more active Congress. I think they are picking their battles and, frankly, [the wiretapping program] was a very unpopular position with the Republican base.”

Harman said the reversal by the White House was not brought about by any modification to FISA. “The bottom line here is they will have to get individualized warrants if they want to listen to the communications of Americans in America,” she said.

However, she added, “I’m not talking about people who are not Americans or U.S. persons.” Harman declined to elaborate, saying that the details in the FISA procedures are classified. But her comment suggests that individuals who do not meet the legal definition of “U.S. persons” might fall under a more lenient legal standard that would allow the government to place them under surveillance without going through the same FISA application process.

The action was embraced Wednesday by lawmakers and civil liberties groups who said the move was an overdue recognition by the administration that it had been overstepping legal bounds.

“The announcement today is welcome news, but it is also confirmation that the administration’s go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary,” said Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Senate Intelligence Committee. “The president could have and should have worked with the Congress immediately following Sept. 11, 2001, to fashion a surveillance program that was in compliance with all existing statutes.”

Sen. Charles E. Schumer (D-N.Y.) said: “This announcement can give little solace to the American people, who believe in the rule of law and ask for adequate judicial review. And why it took five years to go to even this secret court is beyond comprehension.”

Other lawmakers called on the Justice Department and the FISA court to release further details. Sens. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and Arlen Specter of Pennsylvania, the panel’s ranking Republican, wrote to the court’s presiding judge Wednesday, asking that she supply the committee with copies of the new orders authorizing the surveillance and, when possible, make them public.

Gonzales is set to testify this morning before the Senate Judiciary Committee.

Changed landscape

The administration’s about-face comes as it confronts a much different political landscape than it did five years ago. Democrats are vowing closer scrutiny of its use of executive power. And White House-backed legislation that would have amended the law to allow for the sort of surveillance Bush was conducting died when the GOP Congress was voted out.

In fact, a federal court in Detroit ruled in August that the warrantless program was unconstitutional, and many legal experts believe the Supreme Court would agree.

The Justice Department on Wednesday wrote the federal appellate court in Cincinnati that is hearing an appeal of the Detroit ruling to inform the court that the department was now subjecting the program to court oversight. It was unclear what the impact would be on the appeal.

Lawyers challenging the program said it was bound to be struck down by the courts.

The administration decision “restores the rule of law and ends a program that rested on the president’s assertion that as commander in chief he can secretly order that federal criminal statutes be violated and Americans spied upon,” said David Cole, a Georgetown University law professor who has been representing the Center for Constitutional Rights in a lawsuit challenging the wiretap program. “That position was lawless.”

*

rick.schmitt@latimes.com

greg.miller@latimes.com

Times staff writer James Gerstenzang contributed to this report.

*

Begin text of infobox

Spying controversy

President Bush acknowledged the existence of the Terrorist Surveillance Program in December 2005, after it was first reported by the New York Times.

The program -- under which the National Security Agency monitors electronic communications, including e-mail and phone calls -- was aimed at identifying potential terrorists who were communicating with people in the United States. Bush said the program had thwarted a number of attacks.

Critics have alleged that the program circumvented the Foreign Intelligence Surveillance Act of 1978. That law created a secret, independent court to handle government requests for electronic surveillance in terrorism and espionage cases. The law was enacted as a check on executive power after the Watergate scandal and revelations that the FBI and other intelligence agencies were spying on war protesters and political opponents of the administration.

Bush has said he did not believe he needed court approval for the surveillance program -- citing his authority as commander in chief, and the authorization to use military force issued by Congress after the Sept. 11 attacks. The Justice Department said Thursday that it still believed the original program was on firm legal ground.

*

Source: Los Angeles Times