Wednesday, January 17, 2007

Bush gives in on secret surveillance program -- we think

The fact that such a small step is such a big deal provides sad testimony to the unreasonableness of the Bush administration's previous position, but here it is:

The Justice Department announced today that the National Security Agency's controversial warrantless surveillance program has been placed under the authority of a secret surveillance court, marking an abrupt change in approach by the Bush administration after more than a year of heated debate.

In a letter to the Senate Judiciary Committee, Attorney General Alberto R. Gonzales said that orders issued on Jan. 10 by an unidentified judge puts the NSA program under the authority of the Foreign Intelligence Surveillance Court, a secret panel that oversees most intelligence surveillance in the United States.

Wow. Excellent.

This is a small step because the court is practically a rubber-stamp for surveillance requests. But that's fine: one presumes the government would only bring solid requests to the court, and that the court would err on the side of approval while retaining the right to pull that approval if the request turns out to be spurious. The issue for me has never been "let's prevent the government from listening to bad guys"; it's been "let's ensure that the program is properly supervised, warrants are sought, and the administration can't simply listen to anybody it wants to for any reason."

There's still reason to be cautious, because much is not known:

Gonzales also said that the administration has been exploring ways to seek approval from the surveillance court for nearly two years, but that "it took considerable time and work to develop" an approach that "would have the speed and agility necessary to protect the nation from al-Qaeda."

That could mean a lot of things, including "the court rolled over for us." For instance:

In a background briefing with reporters, Justice officials declined to provide details about how the new program will work -- including whether the surveillance court has issued a blanket order covering all similar cases or whether it will issue individual orders on a case-by-case basis. Authorities also refused to say how many court orders are involved.

Oh, great.

At this point I have to place my faith in the FISA court, and trust they wouldn't have just abandoned their oversight role.

But even if I don't need to be informed of the details, Congress should be... and they haven't.

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he welcomed the new approach but called on the administration to provide more details about the "contours" of the program.

Charles Schumer sums things up best, though with a lot more skepticism than I.

"This announcement can give little solace to the American people, who believe in the rule of law and ask for adequate judicial review," Schumer said in a statement. "And why it took five years to go to even this secret court is beyond comprehension."

Congress should demand answers. And if they are not forthcoming, I hope to see another newspaper report like the one that first exposed this program to the light.

Tangentially, Gonzales attempted to portray the decision as not driven by news coverage.

The attorney general sought to portray the administration’s change of posture as anything but grudging. “In the spring of 2005 -- well before the first press account disclosing the existence of the Terrorist Surveillance Program -- the administration began exploring options” for seeking such approval, he said.

Uh-huh. That's why they established the program in secret, staunchly defended it when they were caught, spent months heaping abuse on FISA and the FISA court and only abandoned that defense when Democrats took control of Congress. Sure. Pull the other one.

They tried the same "we've been intending to do this all along" tactic when discussing Bush's new/old strategy for Iraq. It wasn't persuasive then, either.

It's also possible that they were lying all along. The conservative Captain Ed, of all people, raises that point:

On one hand, having this process remain in our counterterrorism arsenal is great news. However, for those of us who supported the White House on this contentious point, the speed in which they reached accommodation with FISA will call into question that early support. By my count, we've had ten entire weeks since the midterms and they've managed to scale a mountain that they claimed was insurmountable for the previous five years....

They took everyone along for a big ride, making all sorts of legal arguments about the AUMF and Article II -- and now Gonzales has revealed that even they didn't really believe it.

If they were negotiating with FISA to place the program under their jurisdiction, then they must have agreed with their critics that insisted FISA was a covering authority for such action. And if they've spent the better part of two years reaching an accommodation with FISA, why not just tell people what they were doing when the program got exposed? And for toppers, why didn't they start negotiating with FISA in November 2001 when they started the program?

The Bush administration just torpedoed a large chunk of their credibility. This is in no way a victory for the White House, but a huge climbdown. All of that effort and argument went for absolutely nothing.

This is way Captain Ed is one of my favorite conservative bloggers. He can be partisan and speculative, but he also recognizes when things don't add up, even if the person doing the math is a conservative.

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Blogger bob said...

I am surprised there are no comments on this almost a month after it was posted. My surprise notwithstanding, this is less than a baby step. My understanding of the FISA court is that there are 7 judges who are appointed by the President (I assume with the approval of the Senate) for 7 year terms. What that means is that Bush has appointed 6 of those 7 with little or no Senate opposition. So I would think he is still the Emperor for this court. This, to me, is no progress at all in curbing the Justice Dept's excesses, especially when Bush reserves the right to take that power back. It is just more political posturing.

2/09/2007 11:23 AM  
Blogger Sean Aqui said...

Maybe everyone is spellbound by my brilliance. :)

I hadn't heard the bit about the FISA judges all being appointed by Bush. After some checking, it appears to somewhat true.

Judges are appointed by the Chief Justice to seven-year terms. Their terms are staggered, and they must come from different circuits. So all but one of the 11 FISA judges have by now been appointed under Bush.

That assumes, though, that the Chief Justice appoints whomever the executive branch wants appointed -- not a real safe bet. And one of the appointments occurred before 9/11 -- a time when I doubt Bush was particularly focused on the court's functioning.

So you may be right, which is why it is a good idea to be concerned about the whole arrangement. But hopefully we can put our faith in the judicial branch putting professionalism and constitutional prerogatives first, and not simply acting as an administration lapdog.

2/09/2007 11:47 AM  

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