Inside the N.S.A. Hearing

National Journal surveillance reporter Shane Harris has been watching Attorney General Gonzales’ testimony before the Senate Judiciary Committee. He calls an exchange with Senators Feingold and with Schumer about the NSA domestic wiretapping program's new legal status "especially illuminating." Harris sees a new kind of order for the eavesdropping, issued by a single -- likely Administration-friendly -- judge.

First, the attorney general referred to the Foreign Intelligence Surveillance Court judge who issued this recent authorization as “he,” when Gonzales said, “He was very careful.” That means that the presiding judge, Colleen Kollar-Kotelly, who reportedly has expressed concerns about the NSA program tainting other FISA [Foreign Intelligence Surveillance Act] warrant applications, was not the judge who issued this order that apparently allows the NSA program to continue. Of course, Kollar-Kottelly is the only woman on the 11-member court, so that doesn’t much narrow down the question of which judge gave the order.

When Feingold asked Gonzales how long it took the court to issue this order, Gonzales replied that it took “longer than a normal FISA” application. There are varying accounts of how long it takes to secure and execute a FISA warrant, but administration officials have said in the past that they didn’t originally seek FISA warrants for the NSA program, in part, because the process took too long. So, it sounds as if Gonzales is saying that this most recent order from the judge came after longer than usual deliberation on his part.

Gonzales also said that the administration submitted an “application” for this order to the judge, and that it was “innovative.” To the first part—application—this raises the question, which the Justice Department hasn’t answered, of whether this recent order applied to one particular intercept, to more than one, or to the entire program. Sen. Schumer pressed Gonzales for some specificity on this point, but the attorney general declined to discuss what he said were “operational details” of the matter. But reading between the lines a bit, I suspect that Gonzales means the administration has come up with an application for electronic surveillance, one that that fits the special parameters of the NSA program, and that this “innovative” application is different from a traditional FISA application. “It took some time for a judge to get comfortable” with this application, Gonzales said, which I think implies that this application is, indeed, unusual. Whether it will be used on a case-by-case basis, or whether it will cover any and all surveillance conducted under the parameters of the NSA program is unclear. But presumably, if a judge has found this new application acceptable, and has ruled that it does work under the intelligence surveillance law, then the administration would use it again if necessary.

One final note, Gonzales did refer to “orders,” plural, from the judge. He said that these orders “meet the legal requirements under FISA” and that “they also include minimization procedures [to protect personal privacy] above-and-beyond” what is normally required under law. Gonzales also acknowledged that, until the judge issued his recent order, the administration did not believe that “FISA was available” to cover the NSA program. At times, officials have said that they thought FISA did not apply, indicating that they had made a legal judgment independent of the court’s ruling. But Gonzales now seems to be saying that officials were unsure whether FISA applied or not, which is what prompted them to work up this new, innovative application to the court.

One other note: In yesterday's background briefing by senior Justice Department officials, one of the them said that the new orders "take advantage of use of the use of the FISA statute and developments in the law. I can't really get into developments in the law before the FISA court. But it's a process that began nearly two years ago, and it's just now that the court has approved these orders."

"Developments in the law" implies that the recent court order is based not only on FISA, but on recent law, as well. Could be the Patriot Act, which includes electronic surveillance provisions. It sounds as if the judge considered statutes other than FISA in making his decision.

-- Shane Harris

UPDATE 9:33 AM: As TPM Muckracker notes, "Rep. Heather Wilson (R-NM) out-and-out called Gonzales a liar." The AG claimed he briefed Congress on the surveillance program's new legal boundaries. "She was never told of the plan, she said, and from what she heard yesterday it likely stinks:

Ms. Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, “programmatic” approval of the president’s surveillance program, rather than approval of individual warrants.

Administration officials “have convinced a single judge in a secret session, in a nonadversarial session, to issue a court order to cover the president’s terrorism surveillance program,” Ms. Wilson said in a telephone interview. She said Congress needed to investigate further to determine how the program is run.

UPDATE 9:38 AM: Gonzales has met the enemy. And he blogs.

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