Has Bush Gone Too Far?

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But the Administration maintains that advances in technology since FISA was passed make the court's procedures too slow to contend with the immense flood of electronic chatter that now passes in and out of the U.S. and which the agency has much improved means of capturing and analyzing. Justice Department officials say a FISA surveillance request can take up to a week to prepare, even for some seasoned department lawyers. One of them describes the requests as being "like mortgage applications" in their complexity. "When you get a terrorist's cell phone and there are 20 numbers in it," a former Administration official says, "you can't fill out one of these for every one of them." A high-ranking intelligence official says even the emergency provision was insufficient. "We had to stop the surveillance to get approval to continue," he says. "In this fast-paced environment, against an enemy who knows he is being tracked, the idea that you can go back and pick up where you left off is just not possible."

The White House insists that the NSA is looking into only the communications of people who have known links to al-Qaeda. A former senior intelligence official told TIME the program was used to develop a "spiderweb" of links between any person connected to al-Qaeda who communicated from abroad and someone in the U.S. That in turn would lead investigators to whomever the U.S.-based person might communicate with later. The people under surveillance, he says, "always had an established link to al-Qaeda people." Or, as Cheney said recently, "if you're calling Aunt Sadie in Paris, we're probably not really interested."

If that's so, the program's critics ask, then why not just apply to the FISA court first for a warrant, especially when the court has rarely stood in the way of any warrant request? According to the Justice Department, from 1979 to 2004 the court approved 18,724 wiretaps and denied only three, all in 2003. (Despite the 2002 presidential order allowing the NSA to work without a warrant when it chooses to, the agency has continued in many cases to apply for them. Last year it sought 1,754.) But the court has been subjecting the applications to closer examination. It made what the Justice Department calls "substantive modifications" to 94 of last year's requests--for example, reducing the scope, timing or targets in the original application.

An explanation for the NSA's reluctance to seek court approval may be that wiretaps of individual conversations are just one part of what the spy agency can do. It also has the technology to perform data mining, combing by computer through billions of phone calls and Internet messages and looking for patterns that may point to terrorist activity. That requires sifting through a mountain of individual communications to find the one that might lead to something. Under FISA, the NSA would have to obtain a warrant for each suspect phone number. Authorities argue that the FISA process is too slow to cover a situation in which a known terrorist calls a number in the U.S. not already covered by a FISA warrant.