WASHINGTON – Senators demanded details Thursday from Attorney General Alberto Gonzales about new orders putting the government's domestic spying program under court review — and questioned why it took so long to do so.
Meanwhile, the presiding judge of the Foreign Intelligence Surveillance Court said she had no objection to disclosing legal orders and opinions about the program that targets people linked to Al Qaeda, but the Bush administration would have to approve release of the information.
Gonzales and National Intelligence Director John Negroponte said it was uncertain whether the court orders and details about the program will be disclosed.
Negroponte, testifying before the House Intelligence Committee, said there may be separation of powers issues involved in turning over information to Congress about the program.
At issue is how the secret panel of judges will consider evidence when approving government requests to monitor suspected Al Qaeda agents' phone calls and e-mails between the United States and other countries.
Until last week, the National Security Agency conducted the surveillance without a court warrant. But the Justice Department announced Wednesday that the FISA court, as it is known, began overseeing the program with a Jan. 10 order.
Gonzales, testifying Thursday front of the Senate Judiciary Committee, said he may not be able to release details of the order.
"Are you saying that you might object to the court giving us a decision that you publicly announced?" committee chairman Sen. Patrick Leahy, D-Vt., asked. "Are we Alice in Wonderland here?"
Responding, Gonzales said it was "not my decision to make."
"There is going to be information about operational details about how we're doing this that we want to keep confidential," he said.
Sen. Arlen Specter, R-Pa., questioned whether the orders give the FISA court a programmatic or blanket authority to approve all wiretapping requests. Although Justice Department attorneys have assured him that that is not the case, Specter said that "we need to know more on the oversight process."
He also needled Gonzales on why the spying program was only last week put under judicial review after the Bush administration acknowledged its existence, amid a public outcry of criticism, a little over a year ago.
"It is little hard to see why it took so long," said Specter, noting that Republicans lost control of Congress elections last fall that were widely seen as a repudiation of administration policy. "The heavy criticism the president took on the program was very harmful in the political process, and for the reputation of the country," Specter said.
Bush secretly authorized the program shortly after the Sept. 11, 2001, terror attacks and vigorously defended it as essential to national security after it was revealed in December 2005. Bush will not reauthorize the program once it expires, officials said.
The FISA court already has approved at least one warrant to conduct surveillance involving a person suspected of having ties to Al Qaeda or an associated terror group.
In a letter released at the Senate hearing, FISA Court Presiding Judge Colleen Kollar-Kotelly, said she has no objection to giving lawmakers copies of orders and opinions relating to the secret panel's oversight of the spy program.
"However, the court's practice is to refer any requests for classified information to the Department of Justice. In this instance, the documents that are responsive to your request contain classified information and, therefore, I would ask you to discuss the matter with the attorney general or his representatives," Kollar-Kotelly wrote in the Jan. 17 letter. "If the Executive and Legislative Branches reach agreement for access to this material, the Court will, of course, cooperate with the agreement."
The court oversight of the controversial program marks a reversal by the Bush administration, which had previously insisted that no such monitoring was required by law and would slow efforts to stop terrorists. Until this week, President Bush had maintained the warrantless program's existence was "fully consistent with my constitutional responsibilities and authorities."
Last August, a federal judge in Detroit declared the spying program unconstitutional, saying it violated the rights to free speech and privacy and the separation of powers. In October, a three-judge panel of the Cincinnati-based appeals court ruled that the administration could keep the program in place while it appeals the Detroit decision.
That appeal, which was scheduled to be heard on Jan. 31, will now likely be rendered moot, said one Justice Department official who spoke on condition of anonymity because the government has not yet officially decided whether to drop its case.
Attorneys for the department notified the appeals court in a separate letter Wednesday that "the government plans to file promptly papers ... addressing the implications of this development on the litigation."
The American Civil Liberties Union, which sued the government over the program, called the Justice Department's announcement "a quintessential flip-flop."
"The NSA was operating illegally and this eleventh-hour ploy is clearly an effort to avoid judicial and congressional scrutiny," said ACLU executive director Anthony D. Romero. "Despite this adroit back flip, the constitutional problems with the president's actions remain unaddressed."