Bush Concedes on Claimed Wiretapping Authority

[Ralph]

Bush has clearly listened to counsel who probably told him that a constitutional test of his claim to Executive power with regard to the wiretapping program might well not fly with either the circuit court or the Supreme Court.

This action may well result in a dismissal of the government's appeal from the Michigan district court on the grounds of mootness.

*****

From The New York Times:

January 17, 2007
White House Says Judiciary Will Monitor Spy Program
By DAVID STOUT

WASHINGTON, Jan. 17 -- 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.

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.

Mr. Gonzales told the committee’s chairman and ranking Republican that the secret court issued orders on Jan. 10 authorizing the government to monitor communications “into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization.”

Mr. Gonzales’s letter, to Senators Patrick J. Leahy, Democrat of Vermont and the new committee chairman, and Arlen Specter, Republican of Pennsylvania, states that “any 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.”

The eavesdropping program, secretly approved by President Bush shortly after the attacks of Sept. 11, 2001, and run by the National Security Agency, has been controversial from the moment it was disclosed late in 2005 by The New York Times. Its supporters have argued that it is entirely legal, does not infringe on legitimate privacy rights, and is a vital tool in the fight against terrorists. Its detractors have said it gives the government far too much power with far too little oversight.

Mr. Gonzales said President Bush would not issue an executive order reauthorizing the eavesdropping program when it expires, within the next 45 days, but would instead defer to the surveillance court. Until now, the White House has contended that it has all the authority it needs to keep the program going, and that a presidential review every 45 days guarded against abuses. Indeed, in his letter, Mr. Gonzales said the surveillance program as it has been run “fully complies with the law.”

The letter from Mr. Gonzales came a day before he is to appear before the Senate Judiciary Committee, some of whose members have been hostile to the administration’s arguments in favor of the program. The hostility would probably have been deeper, now that Democrats are in control of Congress. But Senator Specter, the former chairman of the judiciary panel, has also been skeptical of the program.

Almost everything about the eavesdropping, which has been conducted without warrants, has been bitterly debated. The Bush administration has complained, for instance, that it is wrong to call it a “domestic eavesdropping” operation, since the surveillance involved international telephone and e-mail communications of Americans and others in the United States who are suspected of having links top Al Qaeda and other terrorist groups.

The Foreign Intelligence Surveillance Court was created in response to intelligence-gathering abuses that arose in the Vietnam War era. Until now, the Bush administration has argued that the court moves too slowly to be effective in an age of instant communications.

But in his letter, Mr. Gonzales said the tribunal has now met “administration concerns about speed and agility when it comes to responding to bits of intelligence where we may be able to save American lives,” the White House spokesman, Tony Snow, told reporters. Mr. Gonzales said it took “considerable time and work” to develop the new, court-monitored approach.

There was little question that the eavesdropping operation would run into intensified criticism on Capitol Hill. Representative Nancy Pelosi of California, the new House speaker, said months ago that she favored an investigation to determine how the eavesdropping actually worked.

Mr. Specter fashioned a compromise, after a series of confidential meetings with the White House, that would have brought the entire program before the secret intelligence court to test its constitutionality. But that proposal ran into criticism, as some people familiar with the court expressed doubts over whether such a sweeping review was a proper role for the body.

Later, Mr. Specter offered yet another proposal, to require warrants on communications coming out of, but not into, the United States, and to put the entire eavesdropping issue on a fast track to the Supreme Court.

Whether the administration’s change of stance, as reflected in Mr. Gonzales’s letter, will quiet the program’s critics may not be clear for a while. But the overarching debate about the proper balance between national security and personal privacy will surely continue, as it has off and on throughout United States history.

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.”

[karlhenning]

Exactly what the White House could benefit from (a renewed commitment to the Constitution and the rule of law).

[Werner]

Starting in 2009.