Only few saw the key FISA court rulings

Only a handful of lawmakers have seen a set of Foreign Intelligence Surveillance Court rulings on eavesdropping that have been cited by the Bush administration and Republicans as one of the principle reasons to transfer authority away from the court to the attorney general and director of national intelligence (DNI).

The House and Senate intelligence committees are the only full panels that have read the rulings issued earlier this year on the National Security Agency’s surveillance program, according to panel members and aides.

{mosads}In addition, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking member Arlen Specter (R-Pa.) told The Hill on Friday they have seen the rulings, as have the Judiciary members who also sit on Intelligence.

But the Senate Judiciary panel has only recently obtained access, and staff review is limited. As of last Thursday, at least six panel members said they had not yet seen the rulings. The House Judiciary Committee, which along with Leahy’s committee shares jurisdiction over the court with the intelligence panels, has not had any access to the rulings, according to staff aides.

The decisions, widely discussed even though they remain classified to this day, likely will come under greater scrutiny as Congress battles over legislation to update the 1978 Foreign Intelligence Surveillance Act (FISA) before an interim rewrite of the bill expires Feb. 5.

Sen. Russ Feingold (D-Wis.), a joint member, is requesting that Congress get fuller access to FISA Court decisions. The senator declined to address the particular rulings made earlier in the spring and summer. But at a public hearing on Nov. 13, he said the administration’s “attempts to hide [FISA Court decisions] from Congress, even as it demands new FISA legislation be passed, are unacceptable.”

Time is running out for Congress to approve a new law before the interim bill expires. On Nov. 15, the House approved a Democratic-written bill that partly restores the court’s authority over foreign-intelligence surveillance within U.S. borders. But it does not include a top administration priority — immunity for the telecoms that took part in the NSA program from its inception in 2001 to January 2007, when it was brought under the FISA court’s oversight.

The Senate is expected to vote later this week or next week on a bipartisan FISA bill, passed by the Senate Intelligence Committee on Oct. 18, that includes immunity language. But the Senate Judiciary panel will offer as an amendment its own version that is silent on immunity, and at least one senator, presidential hopeful Chris Dodd (D-Conn.), has threatened to block any bill with an immunity provision.

Director of National Intelligence  (DNI) Mike McConnell and senior Republicans began referring to the secret court rulings, which numbered at least two, shortly before Congress passed the GOP-written interim bill, the Protect America Act (PAA), in August. That measure broadly expanded the powers of the attorney general and DNI to authorize domestic eavesdropping without a warrant.

The rulings subsequently got more attention in public hearings over the fall, when the intelligence and judiciary panels began crafting legislation to succeed the PAA. Some Republicans referred to the decisions in shorthand as a “terrorist loophole.” According to that argument, these rulings crippled intelligence gathering because they reportedly began requiring warrants for foreign-to-foreign calls switched through U.S. fiber-optic networks.

Prior to the rulings in the spring and summer, however, the administration said it had reached a satisfactory compromise with the court when the panel issued orders bringing the NSA program under its oversight in January. In a Jan. 17 letter to Congress, then-Attorney General Alberto Gonzales said those orders “will allow the necessary speed and agility while providing substantial advantages.” The letter also praised the court’s orders as “innovative” and “complex.”

What the subsequent rulings condemned by the administration actually changed remains unclear. After the Senate Intelligence Committee passed its bill in October, it released a declassified report noting that McConnell called particular attention to the second ruling “as significantly diverting NSA analysts from their counterterrorism mission to provide information to the Court.”

“In late July, the DNI informed Congress that the decision by the second FISA Court judge had led to degraded capabilities in the face of a heightened terrorist threat environment,” the report adds.

McConnell underscored his point Monday in a New York Times op-ed, writing that “the judicial process intended to protect the privacy and civil liberties of Americans was applied instead to foreign intelligence targets in foreign countries.”

Amid this ambiguity, some members and legal scholars argue that the rulings may not have been as drastic as the administration described, given that it did not apparently take the most immediate remedy: an appeal to the Foreign Intelligence Court of Review. That panel, which also works in secrecy, is composed of three judges appointed by Supreme Court Chief Justice John Roberts, two of whom are Republicans.

The administration also could have asked for an expedited appeal if the case was urgent. But lawmakers on the panels of jurisdiction say they did not hear of any appeal, which requires congressional notification.

Specter said “as far as I know, the administration did not appeal.” Leahy declined to give details but said he was not aware of an appeal. He added: “If that is the case, the administration probably realized the FISA court was actually right.”

Sen. John Cornyn (R-Texas), a White House ally and Judiciary  member, had a similar take, albeit from the GOP perspective.

“The White House probably thought they would lose an appeal,” Cornyn said. “The FISA court isn’t a policymaking body, and the appeals judges probably would have felt bound by the current law. But the way current law was set up, we were losing two-thirds of our communications intercepts [due to the FISA court rulings].”

“If the administration had the opportunity to appeal, it would have run the risk of losing,” said Rep. Adam Schiff (D-Calif.), a member of the House judiciary panel as well as an intelligence oversight board on Appropriations. “By keeping this alive, it’s a good issue for the White House.”

Rep. Jane Harman (D-Calif.), who served as ranking member on House Intelligence until she left the panel in January, has not seen the rulings but questioned the administration’s timing.

“It’s fair to ask what was the precipitating event,” she said. “Are we sure there is an intelligence gap?”

David Kris, who served as associate deputy attorney general at Justice from 2000-03, has published a book, cleared by the government, offering what he calls an “educated guess” on what may have happened earlier this year. In public talks and in an interview with The Hill, however, he emphasized that he has no direct knowledge the rulings since he was not in the government during the time in question.

Kris emphasized that a FISA application needs three things: a target, like a foreign power; a facility, like a phone number; and a procedure called “minimization,” which regulates the implementation of the surveillance and is intended to balance the privacy rights of Americans against the government’s foreign intelligence needs.

Noting those three requirements, Kris has offered a theory as to how the government had secured the “speed and agility” mentioned in the January letter by Gonzales: It may have targeted the broad gateway switches that connect U.S. networks to the rest of the world. To comport with the FISA court orders, however, it could not conduct wholesale surveillance of all those calls, but instead used minimization procedures to ensure that the only calls targeted were those from or to a foreign power, such as al Qaeda.

“Since you can’t listen to, say, 100,000 calls going through at once, the judge orders that you can listen to any call on that switch as long as you satisfy that one party is the bad guy,” Kris said. “But instead of the FISA court making that call, it’s the NSA, since that governs the ‘back door’ of minimization.”

As for the rulings in question, Kris said, “one judge probably did something regarding minimization, maybe requiring more frequent reporting or more proof. I think it’s unlikely that the FISA Court would have ruled that a warrant is required for the surveillance of foreign-to-foreign telephone calls, and that if such a ruling had been made, the government would have appealed and won.”

Spokesmen for the DNI and Justice’s National Security Division did not comment on the rulings. But Justice spokesman Dean Boyd said: “We have been providing the relevant committees on Capitol Hill with briefings and documents as they attempt to reform the Foreign Intelligence Surveillance Act.”