NOTE: The so-called warrantless domestic spying program that has been under challenge in the federal courts for months had appeared likely to lead ultimately to a constitutional review by the Supreme Court. That prospect diminished on Wednesday, after significant new revelations in Washington about terrorist eavesdropping policy.

UPDATE Thursday afternoon: U.S. District Judge Colleen Kollar-Kotelly, in her capacity as presiding judge of the Foreign Intelligence Surveillance Court, told leaders of the Senate Judiciary Committee Thursday that she would have no objection to releasing to the Committee the new surveillance orders discussed in the following post — provided the Justice Department agreed with the release, since the documents include classified material. The chairman and ranking minority member of the Judiciary Committee asked for the documents on Wednesday.

The Justice Department on Wednesday notified the Sixth Circuit Court and congressional leaders that the Bush Administration is now operating its secret war-on-terrorism domestic surveillance program under orders issued by a specialized and highly secret court, the Foreign Intelligence Surveillance Court. The two letters can be found here. The transcript of a Justice Department background briefing more fully explaining the new Administration approach can be found here.

In the letter to the Circuit Court, the Department said it would soon file documents in that and other courts to address “the implications of this development on the litigation.” The Sixth Circuit is scheduled to hold a hearing Jan. 31 on a broad challenge to the prior surveillance program, in the wake of a federal District Court order striking down that program as unconstitutional.

With the surveillance program now apparently within the supervisory control of the FISA Court, the prospects for Supreme Court review of any challenges to it appear to have declined. Under the existing FISA law, only the government is authorized to pursue any appeals from the FISA Court, either to the mid-level appeals court known as the Foreign Intelligence Surveillance Court of Review, or to the Supreme Court. No one whose communications are monitored by the program has any right to appeal to make any challenge; such individuals or groups, in fact, are not told that their communications have been monitored. The FISA Court considers only one-sided requests for surveillance — those submitted by the Justice Department. Those orders are never made public.

One issue that now arises is whether the existing case in the Sixth Circuit will go forward, and whether a long list of other challenging lawsuits in a federal District Court in California and in an interim appeal in the Ninth Circuit will proceed. Part of the reason that those courts were involved is because the government had previously bypassed the FISA Court in conducting the so-called Terrorist Surveillance Program.


For years, the Administration had been carrying on its Terrorist Surveillance Program without any prior court approval. The program is said to target telephone calls, e-mails and other electronic traffic of U.S. citizens only when the communications are international and involve at least one person or group that is a member of Al Qaeda or another terrorist organization. After news media disclosed the existence of the warrantless program, the Administration defended its legality, arguing that the President had constitutional authority on his own to authorize the surveillance, but that backup authority had come from Congress in the post-9/11 resolution authorizing a response to the terrorist attacks. Moreover, government officials argued that they could not follow the procedures already set up for intelligence-gathering with the FISA Court’s approval, because that process was too slow and too limited to get at the wide sweep of monitoring the government felt a need to do.

Last year, the Administration, together with some Republican leaders in Congress, worked out a legislative proposal that would give the FISA Court the authority to review the surveillance, and to authorize it — not on an individualized basis, as FISA surveillance orders had always done, but on a program-wide basis. That measure, however, was not passed, and is now considered unlikely to pass in the new Democratic-controlled Congress.

On Wednesday, the Justice Department revealed that it had been working with the FISA Court on a plan that would draw in that Court, under existing law, to approve the same kind of surveillance that was proceeding under the President’s earlier order. As a result, the Surveillance Program will no longer operate under presidential authority when the current White House order expires soon; it has been renewed every 45 days.

In the background briefing Wednesday, officials would provide few details about what the Department had told congressional leaders are “innovative” and “complex” orders worked out between the Department and a judge of the FISA Court. That judge, according to officials, has now approved an undisclosed number of such orders, each of which will be in effect for an initial 90-day period. Officials told reporters that the FISA judge who approved the orders had made a “probable cause” finding that, for each order, the standards for surveillance under the Foreign Intelligence Surveillance Act had been met. One official involved in the background briefiing said that “these orders are not some sort of advisory opinion ruling on the program as a whole. These are orders that comply with the terms and requirements of the FISA statute, just like other orders issued by the FISA Court.”

The official stressed that “these orders are not some cookie cutter order where you can just take a book down off the shelf with a model application and slap it together and file it with the court. These orders are complex. It took a long time to work on them. People have been working very hard on this for almost two years actually, and it has just now been approved a week ago by the judge of the FISA Court.”

The orders, according to the letter to the leaders of the Senate Judiciary Committee, were approved by the FISA judge on Jan. 10. Dep;artment officials said that, in addition to the letter to the Judiciary Committee leaders, congressional intellignece committee members had been briefed.

The American Civil Liberties Union, which is pursuing the lawsuit against the existing program at the Sixth Circuit, said in a statement that it will ask the FISA Court “to release more information on the newe orders.” It also asked the Senate Judiciary Committee to press Attorney General Alberto Gonzales for answers about the new developments, when he appears on Thursday for an “oversight” hearing. An ACLU press release can be found here.
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