When Alberto Gonzales appeared before the Senate Judiciary Committee this week, he testified that the Bush administration's warrantless spying program uses "the same" "probable cause" legal standard that the administration would have to meet if it went to the trouble of seeking warrants from the Foreign Intelligence Surveillance Court.
Imagine the surprise of judges on the FISA court.
As the Washington Post reports, then Attorney General John Ashcroft and Bush administration intelligence official Michael Hayden said in private meetings at the time that the warrantless spying program was needed precisely because broad monitoring efforts aimed at preventing terrorist attacks "could never meet the FISA court's probable-cause requirement."
That revelation -- one that suggests either that Ashcroft and Hayden lied about the basis for the program four years ago or that Gonzales lied in defense of it this week -- is just one in a series of remarkable revelations in Carol Leonnig's Post report. Leonnig says that U.S. District Judge Colleen Kollar-Kotelly, the chief of the FISA court, and her predecessor, Judge Royce C. Lamberth, were both briefed on the warrantless spying program as it began -- and that both judges warned the Bush administration that if the program ever faced a court test, it ran a "significant risk of being declared unconstitutional."
The judges didn't have authority over the program itself, but they informed the administration that they would not grant FISA warrants based on information obtained through the warrantless spying program. Administration lawyers assured the judges that they would not seek warrants based on the information. As a safeguard, the lawyers and the judges struck a deal: If the Justice Department sought a warrant for someone whose calls or e-mails had already been monitored through the warrantless spying program -- even if the Justice Department wasn't using the information obtained through such monitoring to justify the warrant -- the Justice Department would flag the request for the presiding judges.
But twice in the past four years, Leonnig says, the Justice Department's counsel for intelligence policy was forced to tell the judges that the administration had failed to live up to its end of the deal -- that is, on two occasions, the administration submitted warrant requests to the FISA court without indicating that it had previously spied on the subjects of the requests without a warrant. In one of the cases, information obtained through the warrantless spying actually made its way into the FISA court warrant request.
Leonnig says that Kollar-Kotelly was furious that her own court's processes had been corrupted by the administration's warrantless spying, and that concerns she raised led to a temporary -- temporary -- suspension of the program.
Leonnig's previously undisclosed account sheds some light on why the administration has so far been unwilling to accept Senate Judiciary Committee chairman Arlen Specter's recommendation that it ask the FISA court to rule on the constitutionality of the spying program: The writing is pretty much all over the walls. Ultimately, however, the administration may not have a choice. Specter says he's drafting legislation that would require the administration to put the program before Kollar-Kotelly and her colleagues. "If they say it is unconstitutional, then there ought to be a modification of it so that what the administration is doing is constitutional," Specter said Wednesday on the Senate floor.