When it comes to taking on the Bush administration over its dubious, secretive, and extra-constitutional tactics, successes are so rare, it’s easy to forget what they look like. Yesterday, when Attorney General Alberto Gonzales told lawmakers that the administration’s warrantless domestic surveillance program would no longer exist, it was a key triumph for the rule of law. Probably.
The New York Times noted, for example, how encouraging the news appears.
[Gonzales] said the administration had worked out a way to speed the process of getting a warrant from the Foreign Intelligence Surveillance Court to intercept communications to and from the United States “where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization.”
He said the court — created by the 1978 law on domestic wiretapping — issued an order on Jan. 10 governing this new process and that eavesdropping under “the terrorist surveillance program” would be subject to the court’s approval. […]
We strongly agree with John Rockefeller IV, the Democratic chairman of the Senate Intelligence Committee, that “the administration’s go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary” and that the White House should turn over documents on the creation of the wiretapping program. If the 1978 law needs to be updated, that should happen in public, not in a secret court.
Given the timing and the circumstances, it looks like a key elections-have-consequences moment. The administration started working on a way out of its legal problem shortly after Dems won back Congress, and got a court order just as Dems started legislating. Appearances suggest the White House saw an embarrassing defeat on the horizon, so it backed down in advance. Yesterday’s announcement was, in effect, a concession — the Bush gang was breaking the law, and now they’re going to stop.
At least, that’s what it seemd like. A closer look at the news highlights the fact that there are still some lingering ambiguities.
Slate’s Daniel Politi noted that Gonzales vowed to subject the domestic surveillance program to FISA court oversight, but no one outside the administration knows for sure exactly what that means.
Administration officials aren’t telling and the papers have different people telling them different things. It is unclear whether the administration found a friendly judge who gave a blanket approval to the program or whether it will have to seek individual approval each time it wants to eavesdrop. The LAT quotes Rep. Jane Harman, formerly the ranking Democrat on the House Intelligence Committee, who said, “the bottom line here is they will have to get individualized warrants if they want to listen to the communications of Americans in America.” Meanwhile, the NYT talks to Republican Rep. Heather A. Wilson of New Mexico who says that as far as she knows the administration “convinced a single judge in a secret session … to issue a court order to cover the president’s terrorism surveillance program.”
Which of these is right? We don’t know. That’s a problem.
Just to be clear, I’m encouraged by what we learned yesterday, and I’m not suggesting that the news is necessarily some kind of charade. The administration did back down, almost certainly for political reasons, sidestepping a fight the Bush gang was probably going to lose.
But some of these unanswered questions need answers. Rep. Wilson told the NYT that “Congress needed to investigate further to determine how the program is run.” Sounds like a good idea.