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Posted by on Jan 18, 2007 in Politics | 17 comments

White House Reverses Course On Warrantless Wiretaps Program

charlie_brown_lucy_football.jpgIf there is any doubt of the impact of divided government and the subsequent Sword of Damacles it imposes of oversight via vigorous investigations, hearings and opposition politicos getting louder microphones, this story seemingly lessens it:

The Bush administration said yesterday that it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort that will be overseen by the secret court that governs clandestine spying in the United States.

The change — revealed by Attorney General Alberto R. Gonzales in a letter to the leaders of the Senate Judiciary Committee — marks an abrupt reversal by the administration, which for more than a year has aggressively defended the legality of the NSA surveillance program and disputed court authority to oversee it.

There are several aspects of this that make it so breathtaking:

  • Last year the administration insisted this program was absolutely vital to protect the security of the United States. FISA courts — which normally give government what they want after the fact any way — just were NOT enough. Thinking that way was, oh, so pre-911 and 20th century.
  • The administration framed this as a virtual life-and-death issue, suggesting that those who were against it (mostly Democrats and a smattering of Republicans) didn’t care about fighting terrorism as much as it did. Times had changed.Old laws were NOT sufficient.
  • The administration had emotionally and politically whipped up what is now — to nonpartisans — becoming truly very old, very fast. Supporters riled up by the White House, who then go on the offensive against those who question the administration (even some who sympathize with it but have…questions).This administration pulled out all stops in Congress, with talk and cable radio hosts and other supporters to get the word out and keep its loyalists in line. It convinced them that warrantless wiretaps were CRUCIAL.
  • But now, in what is a seeming pattern, the administration reverses course quickly and rapidly with little admission that the original “life or death” policy could have been handled with more political negotiation and that “consensus” on national security issues of can be healthier — and better achieve the national interest. MORE:

    Under the new plan, Gonzales said, the secret court that administers the Foreign Intelligence Surveillance Act, or FISA, will oversee eavesdropping on telephone calls and e-mails to and from the United States when “there is probable cause to believe” that one of the parties is a member of al-Qaeda or an associated terrorist group.

    Under the previous approach, such intercepts were authorized by intelligence officers without the involvement of any court or judge — prompting objections from privacy advocates and many Democrats that the program was illegal.

    This sounds like what critics — including some Republicans — were saying needed to be done in the first place.

    But is it? Even in announcing this, the administration is throwing down the political gauntlet, because in thie Washington Post story linked above unnamed sources point fingers at Democrats:

    Administration officials suggested that the move was aimed in part at quelling persistent objections to the NSA spying by Democrats who now control Congress and that it is intended to slow or even derail challenges making their way through the federal courts. The Justice Department immediately filed a notice with the U.S. Court of Appeals for the 6th Circuit yesterday informing the panel of the new program and promising to file papers “addressing the implications of this development” on pending litigation.

    Some Justice officials also said that receiving approval from the secret court will enable authorities to more easily use the information they obtain in future criminal prosecutions. But many details of the new approach remained unclear yesterday, because administration officials declined to describe specifically how the program will work.

    Will this slow Democratic hearings and investigations down? Don’t count on it:

    Members of Congress say they’ll keep pressing for details about President George W. Bush’s domestic eavesdropping program after the government reversed itself and sought court approval of the secret spying on U.S. citizens.

    Senators will get their first chance today. Attorney General Alberto Gonzales plans to testify before the Judiciary Committee a day following his announcement that a secret court will oversee the monitoring of suspected terrorists, which until now operated without judicial supervision.

    “I am pleased that the president has been forced to return to the law,” Senator Russell Feingold, a committee member and Democrat from Wisconsin, said yesterday. “While I welcome the decision to stop conducting surveillance without judicial approval, the president now needs to respond fully to legitimate congressional questions.”

    And, indeed, that is the key issue. Under the Republican Congress, “hard” questions seemed to be questions that were vetted in advance by the White House. Now the White House and Bush administration officials will have to reply to truly hard questions — some of them will likely be partisan TV grandstanding, but most likely the bulk of them will be akin to what well-trained reporters would ask administration officials if they could get them to sit still under oath, fidgeting in a hearing room chair for a can’t-escape interview.
    The New York Times:

    The decision capped 13 months of bruising national debate over the reach of the president’s wartime authorities and his claims of executive power, and it came as the administration faced legal and political hurdles in its effort to continue the surveillance program….

    …. “The announcement today is welcome news,â€? said Senator John D. Rockefeller IV, the West Virginia Democrat who leads the Intelligence Committee. “But it is also confirmation that the administration’s go-it-alone approach, effectively excluding Congress and the courts and operating outside the law, was unnecessary.â€?

    Mr. Rockefeller added, “I intend to move forward with the committee’s review of all aspects of this program’s legality and effectiveness.�

    The paragraph in this story that should be most galling to all of the opinion makers and opinion givers who gave the administration the benefit of the doubt on warrentless wiretapes and aggressively defended it and endorsed its life-or-death-for-the-nation rationale should be this:

    The administration continued to assert on Wednesday that the N.S.A. program had operated legally, but it also said the time had come to allow the intelligence surveillance court, known as the FISA court, to review all warrants on all wiretaps in terrorism investigations.

    “There’s obviously an advantage to having all three branches involved,� said a senior Justice Department official, who briefed reporters on the decision on condition of anonymity. “This issue of the terrorist surveillance program is one that has been under intense public debate and scrutiny on the Hill, and just considering all these circumstances, the president determined that this is the appropriate course.�

    So it wasn’t so vital that Congress and the courts be kept out of the loop? Or was it?

    An ongoing question is how long the Bush administration’s most trusting supporters can continue to be treated like Charlie Brown running to kick the football — only to have Lucy pull it away from him at the last minute. Charlie Brown never learned…

    Are we getting to the point where the Bush adminsitration is creating a genuine consensus — among people on all sides that its official arguments on a host of issues need to be vigorously, even aggressively, examined? Or is it time to run to kick the football again?

    REACTION FROM SOME CONSERVATIVE WEBLOG WRITERS (These are excerpts so please go to links and reach each post in FULL):
    Patterico’s Pontifications:

    So it turns out that we didn’t need the authority to bypass the FISA court after all. We’re perfectly safe doing our eavesdropping under the auspices of the FISA court, don’t you know… And the credibility of this Administration appears to take another serious hit. According to the linked article, when Tony Snow was asked whether the action was tied to federal court proceedings, he replied, in a quote I am not making up:

    No, no, no, no, no. No. No.

    Anyway, Snow says they’ve been planning this for over two years. In the meantime, as recently as one year ago, Bush said that his program was “necessary to win this war and to protect the American people.� And now . . . it’s not. Everybody buys that, right?

    –Conservative blogger Ed Morrissey’s post refers to some Bush supporters saying that Bush got what he wanted anyway and it’s a victory for the White House:

    My anger is over the fact that the Bush administration insisted on two points: one, that the FISA court would not cooperate on streamlining the process for warrants on these intercepts, and the second that the Bush administration had the authority to proceed without it. 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….

    ….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.

    Read Orin Kerr in full since he makes the case that could be a situation where the administration gets somethings it wants and some other benefits, too.
    Sister Toljah gets that feeling, too:”Has the admin pulled a fast one on its critics and furthermore, have the mediots gotten the angle of this story all wrong? Sounds like it.”
    Mark Levin in National Review:

    Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president’s Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House’s credibility. How can it cast away such a fundamental position of principle and law like this?

    AND THEN THERE’S THIS (h/t Ed Morrissey): Glenn Greenwald has written extensively opposing Bush administration positions on warrantless spying and other changes it has made in laws and procedures that it has maintained have been vital to fighting the war on terror. He has a long POST HERE. At the end he writes:

    It’s worth noting that there are Bush supporters (like Ed) who genuinely believe when the administration says that they have to do X because it is necessary to protect Americans, and they then support X in reliance on those representations (in much the same way that many Americans supported the invasion of Iraq in reliance on the administration’s representations).

    For those people (as opposed to the Bush followers who support anything the administration does no matter what and cheer on any expansion of power), this is going to be a hard pill to swallow and then digest. There is simply no way to reconcile (at least honorably) the adminsitration’s prior insistence that our security depended upon eavesdroppping outside of FISA with their sudden willingness to comply with it (now that, as Ed notes, the Democrats control Congress).

    FOOTNOTE: There are really several issues at play here. How best to fight what is an authentic war on terror and have solid intelligence on people who may wish to mass murder Americans, what can be used in the law, how it can be changed, and whether laws are altered in ways that fit in with how our founding fathers insisted they be altered. And then there’s a prime political question.

    Progressives, centrists and conservatives constantly have two fundamental questions: (1)Should we support this person or group? And, (2)Is this person or group WORTHY of our support?

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