Deletions in Army Manual Raise Wiretapping Concerns

By ERIC LICHTBLAU and MARK MAZZETTI

Published: January 14, 2007
The New York Times

WASHINGTON, Jan. 13 — Deep into an updated Army manual, the deletion of 10 words has left some national security experts wondering whether government lawyers are again asserting the executive branch’s right to wiretap Americans without a court warrant.

The manual, described by the Army as a “major revision” to intelligence-gathering guidelines, addresses policies and procedures for wiretapping Americans, among other issues.

The original guidelines, from 1984, said the Army could seek to wiretap people inside the United States on an emergency basis by going to the secret court set up by the Foreign Intelligence Surveillance Act, known as FISA, or by obtaining certification from the attorney general “issued under the authority of section 102(a) of the Act.”

That last phrase is missing from the latest manual, which says simply that the Army can seek emergency wiretapping authority pursuant to an order issued by the FISA court “or upon attorney general authorization.” It makes no mention of the attorney general doing so under FISA.

Bush administration officials said that the wording change was insignificant, adding that the Army would follow FISA requirements if it sought to wiretap an American.

But the manual’s language worries some national security experts. “The administration does not get to make up its own rules,” said Steven Aftergood, who runs a project on government secrecy for the Federation of American Scientists.

The Army guidelines were finalized in November 2005, and Mr. Aftergood’s group recently obtained a copy under the Freedom of Information Act. He said he was struck by the omission, particularly because of the recent debate over the National Security Agency’s domestic surveillance program. President Bush has asserted that he can authorize eavesdropping without court warrants on the international communications of Americans suspected of having ties to Al Qaeda.

Like several other national security experts, Mr. Aftergood said the revised guidelines could suggest that Army lawyers had adopted the legal claim that the executive branch had authority outside the courts to conduct wiretaps.

But Thomas A. Gandy, a senior Army counterintelligence official who helped develop the guidelines, said the new wording did not suggest a policy change. The guidelines were intended to give Army intelligence personnel more explicit and, in some cases, more restrictive guidance than the 1984 regulations, partly to help them respond to new threats like computer hackers.

“This is all about doing right and following the rules and protecting the civil liberties of folks,” Mr. Gandy said. “It seeks to keep people out of trouble.”