WASHINGTON -- In an apparent shift, President Bush has agreed to submit the National Security Agency's controversial domestic eavesdropping program to a secret court for approval, eliminating the warrantless aspect of the program, federal officials announced yesterday.
Critics say the move, a year after the NSA program became public, appears to be an effort to pre-empt an investigation by Congress now that Democrats are in control. Attorney General Alberto R. Gonzales is scheduled to testify before the Senate Judiciary Committee this morning.
On Jan. 10, a judge on the secret national security court gave the federal government the authority to monitor calls to or from the United States that it believes are linked to al-Qaida or a related terrorist organization, Gonzales said in a letter yesterday to top members of the Judiciary Committee. Administration officials said they hope the ruling will cool debate over the president's power to authorize warrantless surveillance.
"As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," Gonzales wrote, referring to the secret national security court.
When the NSA program was first made public in December 2005, Democratic and Republican critics accused Bush of evading the Foreign Intelligence Surveillance Act of 1978, which requires the government to obtain warrants from the secret court before it eavesdrops on people in the United States.
Gonzales and other administration officials argued that Bush had the power to authorize such eavesdropping, regardless of the 1978 law, because of the president's wartime powers as commander in chief and because Congress had authorized the use of force against the perpetrators of the Sept. 11 attacks.
Since the NSA program began, Bush has been giving approval every 45 days, using his executive powers. Bush no longer will personally authorize the program, now that the court will oversee it, Gonzales wrote.
Bush and other administration officials have argued that filling out paperwork and obtaining a warrant under the terms of the 1978 law would be cumbersome and impracticable while in "hot pursuit" of terrorists.
The creation of a national security division at the Justice Department last year is among the factors that have enabled the federal government to request warrants from the secret court, said a department official who briefed reporters on condition of anonymity.
The administration's unexpected shift was the result of a two-year effort with the secret court to find a way to obtain court approval that also would "allow the necessary speed and agility" to find terrorists, Gonzales said in his letter. The "innovative" court order last week will do that, he said.
But the unusual announcement of the judge's ruling, the content of which remains classified, did little to settle questions about the legality of the NSA eavesdropping program.
Critics vowed to continue to fight the program in court and urged lawmakers to obtain more information about it. The American Civil Liberties Union, which is suing the U.S. government over the program, said in a statement that "without more information about what the secret FISA court has authorized, there is no way to determine whether the NSA's current activities are lawful."
Senior Justice Department officials, speaking on condition of anonymity, told reporters that the Bush administration had been working with the court for two years to reach an agreement. They declined to say whether the orders provided individual warrants for each wiretap or whether the court had given blanket legal approval for the entire NSA program.
Under the 1978 law, such domestic eavesdropping may be carried out only if the federal government can show probable cause that the target is an "agent of a foreign power." Meeting that standard could be difficult without evaluating each case of eavesdropping, national security lawyers said.
If the administration is now complying with the 1978 law, said Kenneth Bass, who was a White House intelligence counsel when the law was written, it is unclear why the NSA could not have obtained a warrant when the program began 5 1/2 years ago. But if a judge turns down an application for a wiretap, Bass said, the president could decide to go ahead based on the broader justifications he has made for allowing warrantless eavesdropping.
"It doesn't settle the legal issues at all," Bass said.
He said lawmakers should press the Bush administration for more information about the content of their warrant applications and the judge's ruling. They also should demand to know why the administration could not have sought a warrant earlier, he said.
Democrats generally cheered Bush's decision to submit the program for court approval, but signaled that the ruling would not put an end to their concerns.
Sen. John D. Rockefeller IV, the West Virginia Democrat who leads the Select Committee on Intelligence, praised the announcement but chastised the administration for continuing to withhold information about the program from Congress.
"Unfortunately, our efforts continue to be hampered by the administration's unwillingness to provide the committee with relevant documents," he said. "The president has decided that he will cooperate with the court to put this program on sounder legal footing. I encourage him also to cooperate with the Congress."
Sen. Patrick J. Leahy, the Vermont Democrat who chairs the Judiciary panel that will question Gonzales today, said in a statement that only "with meaningful oversight can we ensure the balance necessary to achieve security with liberty."
Pennsylvania Sen. Arlen Specter, a leading Republican critic and the party's ranking member on the Judiciary Committee, said the warrantless program should end immediately and that Congress still needs more details.
"With an alternative program in place, it ought to be terminated now," he said on the Senate floor. "I want to know all of the details of this program. ... There needs to be oversight beyond what has been disclosed in this letter. But at least there is a very significant first step."
More than two dozen legal challenges to the NSA program are in the courts. Last year, a federal judge ruled the warrantless eavesdropping program unconstitutional.
An appeals court is set to hear that case Jan. 30. The Bush administration informed the court yesterday that the program had obtained a warrant, implying that it would seek to dismiss the case.
"This announcement has no impact on the case," said Ann Beeson, the ACLU's associate legal director, who said the group's challenge to the president's assertion of authority still stands, because Bush is retaining his power to eavesdrop without a warrant as commander in chief and the administration has not explained how the program now complies with the 1978 law. The judge's ruling also does not address other warrantless programs that are said to exist beyond Bush's Terrorist Surveillance Program.
Several newspapers, including The Sun, have reported that there is another warrantless NSA program that collects the records of millions of communications in the United States, including domestic long-distance phone calls.
"There have been allusions to other programs we really don't know anything about," said Suzanne Spaulding, a former CIA counsel. "So that's still a question."
siobhan.gorman@baltsun.com