You may recall about a year ago when the nation first learned that the Bush administration, in secret, had asserted the right to conduct warrantless wiretaps on domestic conversations, without any judicial oversight. The key part of the debate wasn’t, as conservatives argued, about whether or not to conduct surveillance on suspected bad guys; it was whether or not the administration could sidestep the law.
At the time, administration officials argued, unpersuasively, that they couldn’t bother with warrants or checks and balances. That was pre-9/11 thinking. Even with the FISA court’s provisions that allow retroactive warrants up to 72 hours after the fact, the administration said they needed unchecked power. If you disagreed, you were soft on terror.
In a very interesting twist, the Bush gang seems to have reversed course.
The National Security Agency’s domestic surveillance program will be subject to court approval, according to a new letter from Attorney General Alberto Gonzales to lawmakers.
The NSA program, dubbed the “Terrorist Surveillance Program,” had been criticized for spying on Americans without warrants from a U.S. court. Now, according to Gonzales’ letter, the program will operate under approval by the secret FISA court.
Gonzales is slated to testify before the Senate Judiciary Committee tomorrow.
I assume there has to be a catch, but based on Gonzales’ letter, it seems the Bush administration will finally do what Democrats said he should do — conduct surveillance with oversight from the FISA court.
The letter, sent to Sens. Pat Leahy (D-Vt.) and Arlen Specter (R-Pa.), the chairman and ranking member of the Senate Judiciary Committee, certainly seems as if the administration is taking the opposition position of what it has said in defense of warrantless searches for the last year.
[A]ny electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court….
Although, as we have previously explained, the Terrorist Surveillance Program fully complies with the law, the orders the Government has obtained will allow the necessary speed and agility while providing substantial advantages. Accordingly, under these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires.
Maybe there’s some loophole here that’s not in the plain text. Maybe White House officials will say they’ll comply with the law, but will end up blazing their own trail. Who knows.
In the meantime, it certainly appears as if the Bush gang has given up on one of the more controversial, and legally dubious, aspects of their counterterrorism strategy.
And on a purely political note, the Bush gang also seems to have cut off at the knees every right-wing supporter who said the domestic surveillance program was absolutely necessary, had to be kept separate from FISA, and could not be altered under any circumstances.
Update: Dems respond.
Senate Judiciary Committee Chairman Patrick Leahy just issued a statement in which he says he welcomes Bush’s decision to “seek approval for all wiretaps from the Foreign Intelligence Surveillance Court, as the law has required for years.” “The issue has never been whether to monitor suspected terrorists but doing it legally and with proper checks and balances to prevent abuses,” Leahy says in the statement. “Providing efficient but meaningful court review is a major step toward addressing those concerns.”
Sen. Chuck Schumer takes a significantly different tone in a statement of his own, saying that Bush’s decision “flies in the face of the fundamentals of American justice, which, when the balance of power is divided, require that these things should be done with full debate, and with full review.” Schumer says the Gonzales announcement “can give little solace to the American people, who believe in the rule of law and ask for adequate judicial review. And why it took five years to go to even this secret court is beyond comprehension.”