WASHINGTON, Jan. 18 (UPI) -- In an astounding U-turn, the Bush administration says it will end its much-touted program of warrantless phone-taps of suspected terrorists, opting instead for secret orders from the Foreign Intelligence Surveillance Court which would allow the monitoring to take place under judicial supervision and review.
In a one-and-a-half-page letter to lawmakers, Attorney General Alberto Gonzales said that a judge from the secret court, set up by Congress to authorize electronic eavesdropping by U.S. spy agencies inside the country, had issued orders last week "authorizing the government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member of al-Qaida or an associated terrorist organization."
He added that henceforth "any electronic surveillance that was occurring" under the National Security Agency's presidentially authorized Terrorist Surveillance Program "will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court."
As a result, he finished, the president had decided not to renew the current 45-day authorization for the program when it expires.
"The program continues," White House Spokesman Tony Snow told reporters later, "but it continues under the rules that have been laid out by the court."
The stunning turnaround came the same day as Gonzales, in a speech at the conservative American Enterprise Institute, urged the judiciary to show "deference" to the executive branch on matters of national security.
"I don't think the judiciary is equipped at all to make decisions about what's in the ... the national security interests of our country," he said. "They're not capable of doing that."
Senior Justice Department officials who briefed reporters Wednesday on condition of anonymity declined to elaborate about whether individual determinations of probable cause would be made under the orders or sho would make them.
I'm really am not in a position to describe the mechanics of the orders and to get into the details," said one, "Because it really does say something about the intelligence activities involved. But I will say that the probable-cause determinations we're talking about are subject to review and approval by the (court)."
The officials would not say whether the orders covered individual cases but denied that they provided some kind of blanket authorization for the program.
"These orders are not some sort of advisory opinion ruling on the program as a whole," said one. "These are orders that comply with the terms and requirements of the (Foreign Intelligence Surveillance Act, or FISA, which set the courts up), just like other orders issued by the court."
But he added the orders were special ones, "complex."
"... People have been working very hard on this for almost two years," the official said.
He said the orders "take advantage of the use of the FISA statute and developments in the law ... before the court," but added, "I can't really get into" what they might be.
"We take full advantage of all the relevant case law," continued the official, "That includes our own approach to the statute. That includes rulings from the FISA court. That includes significant precedents from the FISA court, (and) other related things."
Congressional critics of the program from both parties generally welcomed the news, but said it also demonstrated that they had been correct to contend that the wartime powers claimed by the administration as the legal basis for the program were unnecessary.
"The President could have and should have worked with the Congress," said Senate Intelligence Committee Chairman John Rockefeller, D-W.Va., "to fashion a surveillance program that was in compliance with all existing statutes."
Calling the move "a very significant first step," the ranking member of the Senate Judiciary committee, Arlen Specter, R-Penn., went on in a floor statement to complain it was "regrettable" that it had not been "taken a long time ago. I'd like to have an explanation as to why it took from last spring of 2005 ... when there has been such a public furor and public concern."
Officials would not say whether surveillance conducted under the program had to be modified in any way to gain the court's approval. "
A former senior federal official familiar with some aspects of the program told United Press International that the program had already been tweaked a number of times before.
"There was considerable study of the program and there were adjustments in as they went along," the official said, defending the program, and its legal basis, as "totally legitimate."
But he added it had been "ill-advised" to keep it from Congress. "That was a fundamental social and political error," said the official, and the political pressure it had generated had left the country in the wrong place vis-à-vis the program.
"The FISA court is not the right place" for oversight of the program, said the official. "They don't understand how the program works; they don't understand the limits of the technology."
The Justice Department officials urged Congress to move ahead with a modernization of FISA anyway, saying that even without the additional workload which would be imposed by the new orders, the court needed more streamlined procedures to avoid being overwhelmed.
"This is a very significant development that will likely very significantly increase the workload on the court," said one of the new orders. He said legislation was needed to "refine the scope of what the FISA Court needs to do in a way that will make it much more efficient and streamlined and will cut down significantly on the burden."
Rockefeller said he intended to move forward with the committee's review of the program, but complained its efforts "continue to be hampered by the administration's unwillingness to provide the committee with relevant documents," including a copy of the court's new orders, the legal briefs government lawyers had filed with the court, and the President's original authorization for the program.
"The president has decided that he will cooperate with the court to put this program on sounder legal footing," concluded Rockefeller. "I encourage him also to cooperate with the Congress to build the broad support that our counter-terrorism programs deserve."
