More complex role for secret spy court


The highly secret spy court that would pass judgment on the National Security Agency's warrantless surveillance program under a deal announced yesterday has issued just one public ruling in its nearly 30-year history and from its inception was never intended to consider the kind of complex constitutional questions at issue in the heated debate over the government's counterterrorism methods.

Instead, judges on the nation's most shrouded court sit primarily to rule on government applications to search the homes or monitor the phones and e-mail of terrorism suspects inside the United States - requests that almost always are approved. Last year, the Foreign Intelligence Surveillance Act court did not reject any of the government's 2,072 secret surveillance requests, Justice Department records show.

The court has signaled concerns about the NSA's warrantless eavesdropping program, with one of the panel's 10 judges resigning after the operation was disclosed last December, and its presiding judge demanding more information about why the government had skirted its authority in some cases.

But the court's deeply secret nature raised questions yesterday about whether any broad review of the surveillance program would allow opponents to argue before the court, what appeals process would be allowed and even whether the court would ultimately make its decision public.

American Civil Liberties Union Executive Director Anthony D. Romero called the proposed court review worked out between the White House and Senate Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican who has criticized the surveillance program, "sham oversight" that would "codify the notion that the president is not bound by the laws passed by Congress or the Constitution."

The ACLU is one of a number of groups that have filed lawsuits in federal courts challenging the constitutionality of the NSA program. Those cases would be consolidated under the spy court's review under the proposal Specter outlined.

Michael Greenberger, a University of Maryland law professor who served as a top counter-terrorism official in the Clinton administration's Justice Department, said yesterday that review of the surveillance program would mark a distinct shift for the court, which releases almost no information about its activities beyond an annual report on the number of search warrants applied for and the number granted.

"It's not really a court that's expected to do constitutional analysis," Greenberger said.

In its only public ruling since the court was created under the 1978 Foreign Intelligence Surveillance Act, the panel did show a broader reach. In a May 2002 decision, the court rebuked the FBI and the Justice Department for widely sharing information gathered for intelligence purposes with criminal investigators and prosecutors.

Later that year, a special appeals panel overturned the court's decision and ruled that then-Attorney General John Ashcroft and the FBI did have broad authority to share intelligence information with criminal investigators. Greenberger said the review and decision by the U.S. Foreign Intelligence Surveillance Court of Review was unprecedented.

"It was a three-judge panel that never had convened in the history of the FISA court before and hasn't convened since," he said.

Since Congress passed the 1978 intelligence law, investigators have had to get the court's permission to conduct any intelligence surveillance on U.S. soil. Under the NSA program launched after the Sept. 11 attacks, the government has conducted warrantless surveillance in communications where one party is in the U.S. and another is overseas.

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