NSA Domestic Surveillance and the FISA Court

The New York Times as the story.

The Bush administration, in what appears to be a concession to its critics, said today it will allow an independent court to monitor its warrantless electronic-eavesdropping program.

Attorney General Alberto Gonzales told the leaders of the Senate Judiciary Committee that the Foreign Intelligence Surveillance Court, created by the Foreign Intelligence Surveillance Act of 1978 to supervise anti-terrorism wiretapping within the United States, will supervise the eavesdropping operations from now on.

So the Domestic Surveillance program CAN function under the FISA statutes! Just what we always thought!

E. Christopher Murray, a civil liberties lawyer in the Garden City, L.I., firm of Reisman, Peirez and Reisman, said Mr. Gonzales’s letter embodied “a significant departure from the administration’s prior position, although in reality all the administration is agreeing to do is what is already required of them by law.”

Representative Silvestre Reyes, the Texas Democrat who has just assumed the chairmanship of the House Intelligence Committee, called today’s developments “welcome news, if long overdue.”

“It proves that this surveillance has always been possible under the Foreign Intelligence Surveillance Act and that there was never a good reason to evade the law,” he said. “This announcement does not end our committee’s interest in this
matter.

“I also recognize that the effort to bring this program under F.I.S.A. required a great deal of work by the attorney general and his team,” Mr. Reyes said, “and I am hopeful that the decision to comply with F.I.S.A. will demonstrate a renewed commitment to the Constitution and the rule of law.”

If this is as it seems (and no one should ever trust dubya on National Security or Civil Liberties. Ever.) it looks as if the administration has finally decided to follow the law. However, I'm not holding my breath.

There's this at the Salon.com.

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."

Glenn Greenwald has more. Greenwald is skeptical:

But ultimately, there are only two options -- (1) the administration is now complying fully and exclusively with FISA when eavesdropping, in which case all of its prior claims that it could not do so and still fight against The Terrorists are false, or (2) the administration has changed its eavesdropping program some, but it is still not fully complying with FISA, in which case nothing of significance has changed (at least on the lawbreaking issues) because the administration is still violating the law.

The FISA court and the administration cannot reach an agreement for proceeding that deviates from the FISA law itself. So it is only one or the other of the two options, neither of which reflect well on the administration.

Having said that, I have to say that I find the celebratory tone that I have seen here and there to be quite odd and unwarranted. There is nothing to celebrate here. We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the King deigns that it should and we then celebrate that he has agreed to comply with the laws we have enacted. Moreover, the administration has been violating the criminal law -- i.e., committing felonies -- for the past five years in how they have been eavesdropping on us.

And he makes some good points here:

There is no repentance here, nor (more importantly) is there any rescission of their claimed powers of lawbreaking. Quite the contrary. Gonazles' letter affirms, as one would expect, their belief that they were legally entitled to violate this law. That means (a) that they can violate it again at any future point when they want to, (b) they can violate other laws under the same theories, and (c) whatever other lawbreaking is already occurring as a result of those theories is not going to stop.

This "reversal" merely proves what we already knew -- that there was never any legitimate reason to violate FISA in the first place, and that all of the claims about how they had to in order to stop The Terrorists were complete fiction (claims which, just incidentally, they tried to use to win the last election; if you wanted to make them comply with FISA, it meant that you loved the Terrorists).

As I said, with this gang in the White House, I'm not taking anything for granted.