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White House Shifting Tactics in Surveillance Cases
By ADAM LIPTAK
In a four-paragraph letter on Wednesday announcing that the Bush administration had reversed its position and would submit its domestic surveillance program to judicial supervision, Attorney General Alberto R. Gonzales used one phrase three times. A secret court, he said, had fashioned a way to allow the program to be monitored by the judiciary without compromising the need for “speed and agility.”

That phrase also captures, some critics say, the administration’s moving-target litigation strategy, one that often seeks to change the terms of the debate just as a claim of executive authority is about to be tested in the courts or in Congress.

On Wednesday, the administration announced that an unnamed judge on the secret court, in a nonadversarial proceeding that apparently cannot be appealed, had issued orders that apparently both granted surveillance requests and set out some ground rules for how such requests would be handled.

The details remained sketchy yesterday, but critics of the administration said they suspected that one goal of the new arrangements was to derail lawsuits challenging the program in conventional federal courts.

“It’s another clear example,” said Ann Beeson, associate legal director of the American Civil Liberties Union, “of the government playing a shell game to avoid accountability and judicial scrutiny.”

In other cases, too, the timing of litigation decisions by the government has been suggestive.

Shortly before the Supreme Court heard a set of three detainee cases in 2004, the administration reversed course and allowed two Americans held incommunicado by the military to meet with their lawyers, mooting that issue.

After the court ruled that one of the men, Yaser Hamdi, could challenge his detention in court, the administration instead freed him and sent him to Saudi Arabia.

And just as the Supreme Court was considering whether to review the case of the second man, Jose Padilla, he was transferred to the criminal justice system last year, mooting his appeal.

Paul W. Butler, a former federal prosecutor who served as special assistant to Donald H. Rumsfeld when he was secretary of defense, said the administration’s critics were too quick to view ordinary developments as nefarious ones.

“You do have to ascribe some good faith,” said Mr. Butler, now a partner with the Washington law firm of Akin Gump Strauss Hauer & Feld. “The government uses presidential authority when they think it’s necessary and the law does not provide the specific authority they need. If there is a road that can be taken, operating according to statutes or putting people into the criminal justice system when that makes sense, they will do that.”

Like other administrations, even when this one alters course, it almost never concedes that its earlier actions were mistaken.

In the case of the eavesdropping program, the administration continues to maintain that it is free to operate without court approval. Its decision to submit to the secret court, administration lawyers said, was voluntary. At a briefing Wednesday, almost as an afterthought, a senior Justice Department official said, “There’s obviously an advantage to having all three branches involved.”

The announcement about the surveillance program came two weeks before a federal appeals court in Cincinnati was to hear the first appellate argument about the lawfulness of the program. Government lawyers now say that case is moot, but their claim is open to question.

The usual rule is that cases seeking relief in the future are indeed moot when the relief they seek is granted. But there is an exception, said David Cole, a lawyer with the Center for Constitutional Rights, which has challenged the program in a separate lawsuit filed in New York.

He cited a series of Supreme Court decisions in which the defendants had voluntarily done what the lawsuits were seeking. Such cases are moot, the court ruled in 1968, for instance, only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

Because the administration has reserved the right to continue the program, Mr. Cole said, the courts should rule on whether it violated a 1978 law, the Foreign Intelligence Surveillance Act and the Constitution.

A third case, from Oregon, is almost certainly not moot. In addition to asking the court to stop surveillance without warrants in the future, that suit asks for money as damages for past surveillance.

The Oregon case, brought by an Islamic charity and two of its lawyers, differs from the Cincinnati appeal and the New York suit because the plaintiffs in it say they have seen a classified document confirming that their communications were actually intercepted.

“We’re certainly center stage now,” said Jon B. Eisenberg, who represents the charity, Al Haramain Islamic Foundation, and the lawyers.

Mr. Gonzales, speaking to the Senate Judiciary Committee yesterday said that the recent orders involved a creative reading of the 1978 law, often called FISA. After the Sept. 11 attacks, he said, administration lawyers determined that the program could not be reconciled with the law but later decided to “push the envelope.”

Statements like that frustrate the administration’s critics.

“It is very difficult to know if this order in fact satisfies FISA,” Mr. Cole said.

Because FISA applications are one-sided affairs, with no one arguing the other side, there is no losing party who can appeal from the orders. In a letter on Wednesday, Colleen Kollar-Kotelly, the presiding judge of the 11-member court, the Foreign Intelligence Surveillance Court, said she would have no objection to the release of the relevant orders to lawmakers if the Justice Department approved.

But Mr. Gonzales indicated that the department would object to the release of at least the “operational details” disclosed in the orders.


http://www.nytimes.com/2007/01/19/washington/19legal.html?ei=5094&en=df0e196e391a2470&hp=&am...