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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?

    Click here for reuse options!
    Copyright 2007 The Moderate Voice
    • A fabulous roundup on a very complex issue!

    • So the right wing is collectively clutching their aching heads because the rug is pulled yet again. That’s one side of the story.

      Another side is that this is another backtrack by an administration that has lost its nerve long after it lost its way. But the boo-hooing from supporters is somewhat balanced by the evidence that this “imperial presidency” isn’t so imperial after all and knows that its days are numbered. Will anybody who insisted that Bush was on the verge of dictatorship recant?

    • Daniel:

      I suppose it is a matter of degrees, but being “on the verge of a dictatorship” and a fullblown dictatorship doesn’t seem to be substantially different, and rescinding the secret executive order that approved the NSA program is small beer when you consider the entire landscape.

      You will get no recanting from me.

    • grognard

      Conservatives will find some slant on this, maybe something along the line that Bush will now use FISA only to keep the Democrats placated so that he can continue to concentrate on the war without distraction. Either that or he can blame Clinton, but this time Hillary.

    • The notion that it is somehow necessary to ignore courts and that it is necessary for the government to be able to spy on its own citizens without effective checks and balances is absolutely ludacris.

    • CStanley

      To me it’s never been about supporting Bush or not supporting him. I see the current developments as a positive sign that the system is working; corrections are being made. I was of the opinion that FISA might need to be modified for greater flexibility and expediency, and I saw the administration’s rationale for bypassing the old laws but I also saw the dangers of allowing the Executive branch to make up the new rules without oversight. Now that the political pressure is on, that danger is dissipating because the checks and balances of divided government have been restored.

    • Shawn:

      Fair enough. Although I was not accusing you (mostly because I don’t know you) of claiming that we were or are or might be or whatever on the verge of dictatorship, I guess you are. Okay. To my point of view, this is just evidence that we are not.

      Do we have a disaster of a president. You bet, and I am disgusted by it. Do we live under threat of totalitarianism? Uhh, don’t think so.

      But I suppose we’ll see in 2008. If we wake up with President for Life Bush I guess you will have been proven right and I will have been proven the fool. However, I don’t remember the last election going south, do you? And what about all those claims that the election was sure to be rigged?

      As a life-long Democrat, I find it offensive to think that only Democrats can win fair elections.

      I’ve gotten off the subject, kinda, but hopefully you get my point. We may have an underachieving electorate in the US, but those of us who do vote do so diligently and ethically. And we elected Democrats.

    • Upinsmoke

      This is political hay.

      The effectiveness of the Secret NSA wiretaps was that they were SECRET.

      Now that its out in the open, the details laid bare to every terrorists the effectiveness of these wiretaps is diminished as the bad guys find new ways to go around them.

      Putting the nsa taps back in the fisa courts hands is a smart move by the administration. It takes the fight out of it and puts the ball in the democrats court who would have loved for Bush to continue to defend them so they could use one more thing against them in the upcoming elections.

      Don’t you understand this is all political manuevering by the Republicans to try and keep as much power as possible and to try and minimize the fallout from the war. The republicans are quite effetively putting………and this is funny……..the war into the Democrats hands and by election 2008 the democrats will be defending their actions on this war while the republicans sit back and lash out at them for being inept bunglers.

      Remember Vietnam? Remember basically it was JFK and LBJ that escalated the war then came to the realization it could not be won. Nixon was elected and suddenly it was NIXON’s WAR. The Dems did it to the republicans and now the Republicans are going to do it back to the Democrats.

    • Don in Canada

      The idea that the NSA wiretaps were only effective while they were secret was torpedoed long ago by the simple concept that if you’re conducting covert, illicit operations in a foreign land, and you make a phone call, you assume at all times that you could be monitored. FISA didn’t change that or limit it; it provided oversight.

      That said, there’s been one thing unmentioned since this story broke. It’s only after Risen and Lichtblau let the cat out of the bag that the ‘grave necessity’ line came into play, not to mention the near heroic efforts on the part of the WH to retroactively legalize a program they claimed was legal from the start (after they’d been caught with their hands in the cookie jar). Before that, from November ’01 forward, there was an ongoing series of denials by Bush and the Administration (or strong implications of denial, for the parsers) that any domestic surveillance would be conducted outside of FISA provisions, ’cause that would be wrong.

      Pardon my skepticism, but with the WH’s track record of making ‘concessions’ while hedging their bets (or covering their butts), the question should be what have they got on the back burner that they’re willing to take the hit on this.

    • Upinsmoke

      The nsa wiretaps were a direct result of the telephone numbers found on cell phones, computers and unencrypted disks during raids that were never divulged until well after they had happened.

      IN addition the telephone numbers of as of yet unused cell phones were also put on the list.

      The NSA wiretaps were solely and almost exclusively for cell phone calls from 1 time used cell phones. Rather pointless to get a warrant to tap a phone that will never be used a second time.

      But thats okay…….keep screaming…..Were getting used to it.

    • Don in Canada

      Putting aside that outside the administration, no one (including Congress) knows enough about the program to be qualified to say exactly what the NSA program did/does or how far it went/goes, that brings us back to the 72-hr window for obtaining a warrant for surveillance already conducted. IOW, a paper trail that says ‘this is what we did and why’. You know, oversight.

      But the administration doesn’t want that and has fought tooth and nail against it. Why? To paraphrase one of their favorite tag lines, if they’re not doing anything wrong, what’s there to worry about?

      Aside from the fact that for four years they led the American people to believe they were playing by the established rules, the ones they knew they were breaking all along. They broke the law and after 4 years playing innocent, they got caught and have been playing damage/spin control ever since. Gonzales’ claims of the program’s legality, repeated again today, aside, retroactive immunity for the program’s activities under S.2453 wouldn’t have been necessary, otherwise.

      In that light, and considering their established track record of selective use of fact and spin (i.e. ongoing changes of Iraq justifications), and considering that the executive continues to demonstrate that it feels that the other 2 branches of governemnt are deficient, irrelevant or existing at their convenience, it’s perfectly reasonable to ask what else the adminsitration has going on.

      The American political experiment was predicated on mistrust of government.

      No screaming necessary.

    • Jim S

      CS and Daniel,

      The problem with your claim that the system is working is very simple. I don’t think anyone but the blindest partisans actually think that this reversal would have taken place if Republicans still ruled the House and Senate.

    • Upinsmoke

      Jim S. I think GWB and company are putting the ball in the dems court and in 2 years the Democrats will be defending themselve on their role in IRAQ and the war. This is a brilliant move and one the Dems should be trembling at. LBJ did it to Nixon. He escalated the war and then said oh we cant win therefore I quit and suddenly the war became NIXONS war.

      GWB and gang are just going to do the same thing back to the dems over the next two years.

      Don In Canada. You shoot down your own argument that the effectiveness of the wiretaps have been shot down and then you say no one knows what goes on besides a few people. So if no one knows what goes on besides a few people then how do you know they are ineffective???

    • Don in Canada

      Oh, I never said they were ineffective, or effective for that matter, although with 5 years of tapping and the penchant of the WH to trumpet anything with which they could beat opponents over the head, they’ve been rather silent on how effective it has been. Arrests last year in Ontario demonstrated that legal methods can be effective, and announced as such, without subscribing to the paranoid idea that even discussion of surveillance enables (and as some implied, supports) terrorism.

      I did say that the idea that security was compromised by revelation of the program was hogwash. Surveillance could have been (and probably was) going on through legally conducted investigations and any would-be terrorist, if that individual or group were a credible threat (unlike the group arrested in Miami), would conduct themselves as though that were the case.

      The existence of the program and its necessity were never at issue. It’s oversight and accountability, and the White House has fought tooth and nail against any being accountable to anyone. Without accountability, the program’s effectiveness, or lack thereof, can never be guaged, a serious concern with the massive fiscal waste reported over the last few years. Without oversight, Congress and the people have no basis to trust the administration’s claims on the program. Considering that the Administration ordered extralegal tapping for 4 years before the program was exposed while claiming the exact opposite; that AG Gonzales still claims it was all legal, implying they could do it again; and that the jury’s still out on exactly what the DoJ’s “concession” means, mistrust is not just understandable, it’s called for.

    • Upinsmoke

      So Don your entire thesis is then that the Bush Administration is really only spying on American citizens for the pure joy of listening in on conversations about Sex, booze and whatever else might thrill them.

      That spending millions and perhaps billions of dollars was very simply an exercise in “PISSING ON THE CONSTITUION” and that GWB danced around the White HOUSE in Glee at the thought that he was pulling the wool over the eyes of the American People he swore to protect.

      I see. Hmmm. Why did’nt I think of that. I guess I should Subscribe to The LEFT’s owners manual to Right Wing Conspiracy Theories.

      I wonder why the LEFT didnt scream so loudly when Clinton in 1994 said hey, not only can we listen in now but we can also search you and your possessions if we even “think” not have probable cause but “suspect” you are guilty of something???

      Oh I know. Its because Hillary was a lawyer and she couldnt possibly PISS ON THE CONSTITUTION. (AFter all if were going to throw out conspiracies I have to throw out the rights favorite…..YOU know that Hillary and not BILL was actually in charge of the USA) ONLY NON lawyer politicians do that.

      Gotta say I love the conspiracy theories you guys fling around. They never stop amazing me. Its no wonder hollywood never runs out of material.

    • CStanley

      The problem with your claim that the system is working is very simple. I don’t think anyone but the blindest partisans actually think that this reversal would have taken place if Republicans still ruled the House and Senate.

      Which is why the system includes the opportunity to vote one party out of power in either or both houses every two years. Ultimately if the party in power doesn’t provide oversight of itself, then the voters do it for them.

    • Upinsmoke

      I could argue this over and over but I have done so on other blogs for a year and I’m really tired of discussing it with unwavering opponents. Ill say my side, youll say your side over and over till the horse is dead and neither of us will be convinced.

      However that being said.

      This is taken directly from GWB’s speech to congress after 9/11. I want you to notice that nothing has changed. HE told us he was going to use secret, covert operations and he meant it. Most Covert operations are ILLEGAL in someway in some country. Thats why they are secret and covert. I for one have zero problems with the FISA and NSA wiretapping program because unlike you…..I believe that the USA is after the BAD guys not after my affair with my office secretary. Once the war is over……..Ill be the first screaming for accountability. But unlike many of you I believe this is a WAR and that in wars things have to be done to win. Sometimes those things are unpleasant but still they must be done to win.

      Quote from GWB in his address to congress after 9/11:

      Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen. It may include dramatic strikes, visible on TV, and covert operations, secret even in success.

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