Bush officials claim spy court cumbersome

December 20, 2005|By SIOBHAN GORMAN | SIOBHAN GORMAN,SUN REPORTER

WASHINGTON -- The former director of the National Security Agency said yesterday that the government's system for approving eavesdropping on U.S. citizens was too slow and unwieldy, and that paperwork requirements stood in the way of more efficient intelligence gathering.

Those were among the reasons, he said, that the Bush administration set up an alternative program after the Sept. 11 attacks that allowed the NSA to bypass judicial checks on domestic espionage.

Gen. Michael V. Hayden, who headed the NSA until he was promoted this year to the No. 2 job in the nation's top spy office, said that under the NSA program, shift supervisors at the agency are responsible for approving requests from employees to eavesdrop domestically.

Hayden, along with Attorney General Alberto R. Gonzales, briefed reporters at the White House as the Bush administration scrambled to explain the operation of the secret domestic eavesdropping program.

The administration's explanation drew a skeptical response from some national security lawyers and intelligence professionals, as well as members of Congress in both parties. They said that a pre-Sept. 11 law, under which the government seeks permission from a secret court that routinely approves government wiretap requests, was capable of responding quickly enough to the security challenges facing the country.

The government did not need to invent a new procedure, said Greg Treverton, former vice chairman of the National Intelligence Council, which analyzes reports from all 15 intelligence agencies. Instead, the administration should have figured out where current law was inadequate and changed it. Creating new channels outside a court review could invite abuse, he said.

"I am not persuaded we can't make [the current legal] regime work," Treverton said. "It seems the right thing to do would be to try to change the process to make it work."

A 1978 law, the Foreign Intelligence Surveillance Act, governs secret wiretaps for national security purposes. Under an emergency provision, paperwork can be submitted that gives agents 72 hours after beginning an intercept to report their eavesdropping activities and get a judge's approval.

That provision, said Sen. Carl Levin, a Michigan Democrat, allows agents to eavesdrop first and fill out paperwork later. The president, Levin said, shouldn't "use the necessity to move quickly as an excuse to bypass the law, which we put in place."

The 1978 law was passed in response to abuses of power in the 1960s and early 1970s in which the government spied on Americans such as Martin Luther King Jr., under the guise of national security. It established a system, through a secret court, to expedite search warrants in national security matters while maintaining a judicial check on government activity. National security lawyers who have worked with warrants under this law say they can be granted within hours.

But such a warrant requires the government to first show "probable cause" that the person is affiliated with terrorists.

After the September 2001 terrorist attacks, the administration established less restrictive procedures under an executive order from Bush. It allows the National Security Agency to eavesdrop on international conversations in which one party on the call is in the United States without obtaining a warrant from the secret court established under the foreign surveillance act. Instead, the administration can initiate eavesdropping if the government has a "reasonable basis" for believing that one party to the communication has ties to al-Qaida, Gonzalez said yesterday.

To illustrate why such a program would be useful, former Reagan Justice Department official David Rivkin sketched a scenario: U.S. government officials obtain the laptop, or cell phone, of an al-Qaida operative overseas that contains a string of phone numbers, some of which are United States numbers. Intelligence agents conclude that the numbers are associates of the Islamic extremist group and that they may have only hours to listen in before the owners of those numbers are informed that their numbers may be compromised. In such an environment, there's no time for legal niceties.

Bush, referring to potential terrorists, said yesterday that "people are changing phone numbers and phone calls, and they're moving quick, and we've got to be able to detect and prevent."

Hayden, the former NSA chief, said the administration found the foreign surveillance act process inadequate because it involves "marshaling arguments" and "looping paperwork around," which is impractical when time is of the essence - even when reporting to a judge after the fact under the 72-hour provision. He said he could not go into further discussion about why the intelligence collection process "is optimized" under the secret system because it would reveal national security secrets.

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