Attorney general: NSA spy program to be reformed

update The Bush administration will substantially alter its controversial domestic surveillance program by seeking approval for wiretaps from a secret court, Attorney General Alberto Gonzales said Wednesday.

The surprise announcement by Gonzales said President Bush has agreed that "any electronic surveillance that was occurring" under the program will be conducted subject to the approval of the Foreign Intelligence Surveillance Court in Washington, D.C. The program is conducted by the National Security Agency.

In a two-page letter (PDF) to the U.S. Senate's Judiciary committee, Gonzales did not specify what prompted the abrupt policy change. Gonzales did say that it took "considerable time and work" for the Justice Department to devise a method that suited both prosecutors and the judges on the court.

The change appears to represent a concession to critics of the NSA program, who have charged that it was illegal and unconstitutional for the government to spy on Americans without any judicial oversight. The Bush administration claims that only international communications involving someone with ties to terrorism are targeted.

It's not clear if the letter was prompted by legal or political concerns. Gonzales' announcement came less than 24 hours before he is scheduled to appear before the now Democrat-controlled Senate for a public hearing about Justice Department activities.

Alberto Gonzales

Democratic politicians welcomed the news. "We must engage in all surveillance necessary to prevent acts of terrorism, but we can and should do so in ways that protect the basic rights of all Americans including the right to privacy," Vermont Sen. Patrick Leahy, the head of the Judiciary committee, said in a statement. "The issue has never been whether to monitor suspected terrorists, but doing it legally and with proper checks and balances to prevent abuses."

In addition, the Bush administration signaled on Wednesday that it would use the announcement to delay or derail lawsuits that arose out of the NSA program. In a letter (click for PDF) sent to the 6th Circuit Court of Appeals, the government said it will file legal briefs "addressing the implications of this development on the litigation." (One federal judge already has ruled the program to be unconstitutional.)

Cindy Cohn, legal director of the Electronic Frontier Foundation in San Francisco, said it's too early to say whether her group's lawsuit against AT&T would be affected. "It's too early for us to comment," Cohn said. "I don't think we can say anything definitive one way or another."

That lawsuit, which a federal judge let proceed on November 17, claims that the telecommunications company unlawfully opened its networks to the NSA. AT&T has not confirmed or denied participating, though one of its lobbyists has pointedly described "very specific federal statutes that prescribe means, in black and white law, for provision of information to the government under certain circumstances."

The Foreign Intelligence Surveillance Court, created by the 1978 Foreign Intelligence Surveillance Act, is known as a secret court because its hearings are held behind closed doors and its proceedings are kept confidential. Only certain Justice Department attorneys may attend its sessions.

Bush's decision does not take effect immediately. He has renewed the NSA surveillance program every 45 days since it began shortly after the terrorist attacks of September 11, 2001, and Gonzales' letter says only that Bush has "determined not to reauthorize" it after the current period expires.

What Gonzales' letter did not do is reveal, even in general terms, how the FISA court will oversee the administration's electronic surveillance requests.

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