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Spy court to get secret briefing -- about secrets

From Kevin Bohn

WASHINGTON (CNN) -- A court that oversees government surveillance will receive a secret briefing about President Bush's controversial domestic spying program, a judge on the court told CNN.

The briefing, to be held behind closed doors, will address concerns about the legality of the National Security Agency program, U.S. District Court Judge Malcolm Howard said.

The program allows the government to eavesdrop on U.S. residents without obtaining warrants.

Howard said the session was put together after colleague James Robertson resigned from the Foreign Intelligence Surveillance Court on Monday.

Robertson, who remains on the federal bench, reportedly resigned in protest of the NSA program. The existence of the program was made public last week.

Howard said the briefing, which will be held in Washington, will be closed and classified. (Watch a report on the secret court -- 1:46)

The surveillance court, made up of 11 judges from across the nation, was created in 1978 by the Foreign Intelligence Surveillance Act (FISA). The legislation mandates that intelligence agencies seeking to monitor domestic conversations must ask the court for a warrant.

The Bush administration argues the NSA program is exempt from that requirement.

Several FISA court judges are raising concerns about the program, according to The Washington Post, which first reported the briefing.

Those concerns include questions about whether the Bush administration has overreached its authority, and whether information that might have been gathered illegally was used to obtain warrants from the court, the newspaper said in Thursday's editions.

Howard said he doesn't share those concerns and wasn't aware of them until he read his colleagues' quotes in the newspaper.

He said the judges have been discussing logistics of the briefing by e-mail. NSA and other government officials are expected to explain the purpose of the project and the legal reasoning behind it.

The classified program has been in existence since shortly after the September 11, 2001, terror attacks. It allows the NSA to monitor U.S.-based communications so long as one end of the communication is overseas.

Government officials also have said only people suspected of having a connection to al Qaeda or another terrorist organization are placed under surveillance.

Many Democrats and civil rights advocates say the program is not lawful because it was not explicitly authorized by legislation.

President Bush and other administration officials have argued it is legal and cite as justification Congress' post-9/11 anti-terrorism declaration as well as the Constitutional authority given the commander-in-chief.

Howard would not say whether he had been told any details of the classified program.

"The terrorist threat is so grave the president needs to use every tool possible, and it has to be accomplished with lightning speed," he said.

Attorney General Alberto Gonzales has said the NSA program was not meant to circumvent the FISA process but to augment it.

Howard criticized Robertson's decision to resign from the court, saying federal judges should not enter the political realm.

It "disappoints me he used resignation as a protest," he said. "That is getting into the fray."

Robertson, however, has refused to give a reason for or otherwise comment on his resignation. His term was scheduled to expire next May.

CNN's Paul Courson contributed to this story

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