White House shifting tactics in surveillance cases

In a four-paragraph letter on Jan. 17 announcing that the Bush administration had reversed its position and would submit its domestic surveillance program to judicial supervision, Attorney General Alberto R. Gonzales used one phrase three times. A secret court, he said, had fashioned a way to allow the program to be monitored by the judiciary without compromising the need for "speed and agility." That phrase also captures, some critics say, the administration's moving-target litigation strategy, one that often seeks to change the terms of the debate just as a claim of executive authority is about to be tested in the courts or in Congress. Gonzales revealed the secret arrangement with the Foreign Intelligence Surveillance Court (FISC) amid an appeals court fight over a federal judge's ruling striking down the spying program as illegal and unconstitutional. But Gonzales' disclosure left unclear whether the secret court has set up a special program that simply gives broad authority for wiretaps or requires the administration to seek warrants the same as always under a 1978 national security law. Under that law, the government obtained warrants on a case-by-case basis, after demonstrating a likelihood that the subject was a terrorist. On Jan. 17, the administration announced that an unnamed judge on the secret court, in a nonadversarial proceeding that apparently cannot be appealed, had issued orders that apparently both granted surveillance requests and set out some ground rules for how such requests would be handled. The details remain sketchy, but critics of the administration said they suspected that one goal of the new arrangements was to derail lawsuits challenging the program in conventional federal courts. "It's another clear example," said Ann Beeson, associate legal director of the American Civil Liberties Union, "of the government playing a shell game to avoid accountability and judicial scrutiny." In other cases, too, the timing of litigation decisions by the government has been suggestive. Shortly before the Supreme Court heard a set of three detainee cases in 2004, the administration reversed course and allowed two US citizens held incommunicado by the military to meet with their lawyers, mooting that issue. After the court ruled that one of the men, Yaser Hamdi, could challenge his detention in court, the administration instead freed him and sent him to Saudi Arabia. And just as the Supreme Court was considering whether to review the case of the second man, Jose Padilla, he was transferred to the criminal justice system last year, mooting his appeal. In the case of the eavesdropping program, the administration continues to maintain that it is free to operate without court approval. Its decision to submit to the secret court, administration lawyers said, was voluntary. Gonzales, speaking to the Senate Judiciary Committee on Jan. 18 said that the recent orders involved a creative reading of the 1978 Foreign Intelligence Surveillance Act (FISA). After the Sept. 11 attacks, he said, administration lawyers determined that the program could not be reconciled with the law but later decided to "push the envelope." Because FISA applications are one-sided affairs, with no one arguing the other side, there is no losing party who can appeal from the orders. In a letter on Jan. 17, Colleen Kollar-Kotelly, the presiding judge of the FISC, said she would have no objection to the release of the relevant orders to lawmakers if the Justice Department approved.