White House Long at Odds With FISA Court

Two years ago, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from a secret intelligence court set up to monitor the federal government's domestic surveillance activities.

Robertson's abrupt departure came on the heels of a December 2005 report in The New York Times that first exposed the White House's warrantless wiretapping program President Bush had authorized shortly after 9/11. Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush's unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.

Publicly, President Bush and Attorney General Alberto Gonzales had said at the time the domestic spying activities were revealed in December 2005 the administration circumvented the FISA court because the approval process was too "cumbersome."

In a December 22, 2005 letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."

More than a dozen legal scholars disputed Moschella's legal analysis, saying in a letter sent to Congress in December 2005 that the White House failed to identify "any plausible legal authority for such surveillance."

"The program appears on its face to violate existing law," wrote the scholars of constitutional law, some of whom worked in various senior capacities in Republican and Democratic administrations.

Government documents suggest there were other reasons the administration chose to bypass the FISA court. Since the FISA court was set up nearly three decades ago, it has rarely turned down applications for surveillance warrants. Indeed, since FISA was enacted in 1978, the surveillance court approved more than 19,000 applications for domestic surveillance and physical searches, according to DOJ (DOJ) records submitted to Congress.

However, the court required the DOJ to show probable cause that the target of the surveillance is either engaging in espionage or is part of a terrorist organization before a warrant for domestic spying is approved, something the Bush administration was finding it was increasingly difficult to do. Robertson, the FISA court judge who resigned, was concerned, he told his colleagues on the FISA court, that the Bush administration was spying on Americans and then using evidence intelligence officials obtained from its surveillance activities to show the FISA court probable cause without alerting the court to its secret activities.

That may explain not only why the Bush administration bypassed the court entirely, but why legislation written by the White House that was passed by Congress last week stripped the FISA court from the approval process and put oversight into the hands of Gonzales and the Director of National Intelligence, Michael McConnell, without requiring an independent legal review.

Since 2001, the DOJ reports to Congress show the FISA court had modified more wiretap requests from the Bush administration than it had during the four previous presidential administrations combined. Of the 6,000 or so surveillance applications the Bush administration filed with the court since 2001, judges either modified and/or requested more information for 179 of them - 173 between 2003 and 2004 alone. Moreover, the court either rejected or set aside at least half-a-dozen applications for warrants in 2003 and 2004, the first time in history the court issued a rejection, DOJ records show.

The Foreign Intelligence Surveillance Act was enacted by Congress in 1978 after lawmakers discovered widespread abuses by the Nixon administration involving covert activities against American citizens.

The legislation Congress passed last week, and signed into law by Bush, dismantles the safeguards Congress put into place nearly three decades ago.

An investigation by Congress at the time, found widespread abuses by the Nixon administration and led lawmakers in 1978 to pass the Foreign Intelligence Surveillance Act to close the loophole in the law the Nixon administration claimed gave him broad powers to conduct domestic surveillance.

The DOJ's attempts to broaden the FBI's spying abilities after 9/11 became a major concern for the FISA court, so that in May 2002 it secretly ordered then Attorney General John Ashcroft to scale back his plans to expand the FBI's investigative powers because it infringed on civil liberties, according to a May 17, 2002 Foreign Intelligence Surveillance Court document.

Ashcroft is credited with breaking down the wall former Attorney General Janet Reno had erected in the mid-1990s that separated intelligence-gathering investigations and criminal probes to safeguard against unnecessary invasion of privacy. Federal investigators were incensed by Reno's plan, which said that intelligence agents cannot share information with criminal prosecutors, who have to meet higher legal standards to be granted warrants to conduct wiretaps and searches.

In March 2002, Ashcroft presented a plan to the FISA court that would allow criminal prosecutors to participate in intelligence operations in the fight against terrorism. The May 17, 2002 surveillance court ruling reined Ashcroft in, and said he overstepped his authority by loosening the rules governing intelligence gathering. Specifically, the court said Ashcroft's plans "are not reasonably designed" to safeguard privacy rights.

"The 2002 procedures appear to be designed to amend the law and substitute the FISA [i.e., the less demanding intelligence surveillance standards] for Title III electronic surveillances [i.e., the more demanding law enforcement standards]. This may be because the government is unable to meet the substantive requirements of these law enforcement tools, or because their administrative burdens are too onerous," the court document says.

The Senate Judiciary Committee also had concerns, according to a February 2003 report the panel issued. The committee met privately with Ashcroft and other DOJ officials after President Bush signed the Patriot Act into law on October 26, 2001. That's when Ashcroft had started to press Congress to make additional changes to FISA requirements, including changing the definition of "foreign power" to include "individual, non-U.S. persons engaged in international terrorism."

"DOJ explained that this proposal was to address the threat posed by a single foreign terrorist without an obvious tie to another person, group, or state overseas. Yet, when asked to 'provide this Committee with information about specific cases that support your claim to need such broad new powers,' DOJ was silent in its response and named no specific cases showing such a need, nor did it say that it could provide such specificity even in a classified setting," the Senate Judiciary Committee report states.

"In short, DOJ sought more power but was either unwilling or unable to provide an example as to why," the report added.

The committee report added that federal law enforcement officials should continue to seek approval for obtaining records from the FISA court because the court provides an "important check against potential abuse in the investigative process." Circumventing the court "effectively puts the court out of business," and "puts the current subpoena authority of the court in the hands of the investigators."

In March 2004, the White House pressured Ashcroft's Justice Department to authorize the so-called Terrorist Surveillance Program (TSP), which essentially gave the White House the tools it needed to circumvent the FISA court. But Ashcroft, and other senior DOJ officials refused, citing concerns about the legality of the surveillance activities, according to Congressional testimony by the DOJ's former No. 2 in command, James Comey. It's unknown whether Ashcroft's concerns about the legality of the surveillance program was the result of prior rulings from the FISA court questioning its legality or based on prior reports from Congress.

Comey told lawmakers in May his refusal to reauthorize the spy program resulted in a hastily arranged, late-night meeting at a hospital, where then White House Counsel Alberto Gonzales and President Bush's former Chief of Staff Andrew Card tried to coerce a barely conscious John Ashcroft to approve the controversial eavesdropping program. Comey said he also was present at the meeting.

Ashcroft was in intensive care at the time, hospitalized with pancreatitis, but, according to Comey, Ashcroft was able to rebut the arguments made by Gonzales and refused to sign the authorization. Comey testified Ashcroft had not recertified the program earlier because he had reservations about its legality. Comey assumed control of Ashcroft's duties as attorney general after Ashcroft was hospitalized. Under federal law, the spy program was supposed to be recertified by the DOJ every 45 days.

Despite the DOJ's refusal to recertify the program, the White House continued to spy on Americans it says were communicating with terrorists for at least three weeks in March 2004, in violation of the law and continued to pressure Congress to legalize its end-run around the FISA court.

Jason Leopold is senior editor and reporter for Truthout. He received a Project Censored award in 2007 for his story on Halliburton's work in Iran.

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