Judges to review spying program

WASHINGTON — The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed that secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"

Most of the judges learned about the program when it was disclosed last week by The New York Times. On Monday, one of 10 FISA judges, federal judge James Robertson, submitted his resignation in protest of the president's action, according to two sources familiar with his decision. He will maintain his position on the U.S. District Court here.

Other judges contacted Wednesday said they do not plan to resign but are seeking more information about the president's initiative. Presiding Judge Colleen Kollar-Kotelly, who also sits on the U.S. District Court for the District of Columbia, told fellow FISA court members by e-mail Monday that she is arranging for them to convene in Washington for a secret briefing on the program, several judges confirmed Wednesday.

The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, who requested anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass it.

The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the U.S. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law includes emergency provisions that allow warrantless eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information.

Still, Bush and his advisers have said they need to operate outside the FISA system in order to move quickly against suspected terrorists. In explaining the program, Bush has made the distinction between detecting threats and plots and monitoring likely, known targets, as FISA would allow.

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious.

Attorney General Alberto Gonzales said the White House had tried but failed to find a way.

The American Civil Liberties Union formally requested Wednesday that Gonzales appoint an outside special counsel to investigate and prosecute any criminal acts and violations of laws as a result of the spying effort.