Judges of secret court briefed on NSA activity


WASHINGTON --The Justice Department held an unusual closed-door briefing yesterday for judges on a secret foreign-intelligence court in response to concerns about President Bush's decision to allow domestic eavesdropping without warrants.

A number of judges from around the country who serve on the Foreign Intelligence Surveillance Court, which issues eavesdropping warrants in terror cases, flew to Washington to hear the administration's defense of the legality and use of the program, officials said.

One federal judge who sat on the court, James Robertson, stepped down in protest last month after the warrantless surveillance operation was first publicly disclosed.

Some of the other 10 judges on the court are also known to have voiced recent concerns about whether information that grew out of the National Security Agency's surveillance operation might have been used improperly in securing warrants from the court for intelligence wiretaps.

The judge who leads the court, Colleen Kollar-Kotelly, the only judge currently sitting on the court who is known to have been briefed on the NSA operation, raised objections last year to aspects of the program and instructed for a time that no material obtained by the NSA without warrants could be presented to the court in warrant applications, officials have said in interviews.

At yesterday's briefing, judges were expected to question Justice Department officials intensely about the legal underpinnings of the program, but afterward they would say little about the session.

Kollar-Kotelly did not return calls seeking comment on the briefing, which was held at the Justice Department, and officials for the department and the court would not discuss any aspect.

"There is going to be no comment about today," said Sheldon Snook, an administrator for the U.S. District Court in Washington. "The court has never commented publicly about their business."

The Bush administration, in defending the use of the NSA program, has pointed to frustrations over the speed and flexibility of the foreign intelligence court as one reason for allowing the NSA to eavesdrop without warrants.

The intelligence court's caseload has grown significantly since the Sept. 11 attacks, with more than 1,700 warrants issued at the last public tally in 2004. Only a few requests for wiretaps have been turned down in recent years.

The 1978 law creating the court allows the administration to conduct emergency wiretaps and seek a formal order retroactively within 72 hours, but the White House maintains that the system can be too cumbersome to allow for quick responses to developing terror threats.

The Justice Department is known to have secured warrants from the foreign intelligence court in some cases that grew out of the NSA's eavesdropping program. That has raised concerns among civil rights advocates.

Some defense lawyers in prominent terror cases around the country said they planned to go to court to determine whether the NSA program had been used against their clients and, if so, whether courts or defense lawyers had been misled about the origins of the evidence against them.

A group of 13 law professors and former government officials weighed in yesterday in the heated legal debate, writing in a letter to congressional leaders that they had serious concerns about the legality of Bush's executive order.

The White House has strongly defended the lawfulness of the program, saying it was grounded both in the president's inherent authority under the Constitution and in a resolution passed by Congress days after the Sept. 11 attacks authorizing him to use "all necessary and appropriate force" against those responsible for the attacks.

But an analysis released last Friday by the Congressional Research Service, a nonpartisan arm of Congress, took issue with several of the administration's main legal arguments, saying that Congress did not appear to have ever intended to give Bush the authority to conduct wiretaps without a warrant.

In the letter released yesterday, the 13 law professors and former government officials went further, writing that "the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law."

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