Judge's secret ruling curbed spy program

WASHINGTON — A federal intelligence-court judge earlier this year secretly declared a key element of the Bush administration's wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by lawmakers this week to expand the president's spying powers.

House Minority Leader John Boehner, R-Ohio, disclosed elements of the judge's decision Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation.

Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly monitor communications between two locations overseas that are passed through routing stations in the United States, said two other government sources familiar with the decision.

The decision was a blow to the administration, which had long held that all the National Security Agency's (NSA) enhanced surveillance efforts since 2001 were legal.

The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court.

The ruling blocked the NSA's efforts to collect information from a large volume of foreign calls and e-mails that pass through U.S. communications nodes clustered around New York and California. Democrats and Republicans have said they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA).

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto on Tuesday.

"This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people."

Gaining access to the foreign communications at issue would allow the NSA to tap into the huge volume of calls, faxes and e-mails that pass from one foreign country to another by way of fiber-optic connections in the United States.

"If you're calling from Germany to Japan or China, it's very possible that the call gets routed through the United States, despite the fact that there are geographically much more direct routes to Asia," said Stephan Beckert of TeleGeography.

That was not true when Congress passed FISA in 1978.

Testifying on the Hill in May, Director of National Intelligence Mike McConnell said the law needed to be updated to accommodate technology's advance.

Under the revision the administration is pressing Congress to approve this week, the attorney general would have sole authority to authorize the warrantless surveillance of people "reasonably believed to be outside the United States" and to compel telecommunications carriers to turn over the information in real time or after it has been stored.

Democrats this week offered a proposal that also would expand the government's wiretapping authority but would keep it under FISA court supervision. The authority would expire in six months.