The One With Aldacron

Finally, the Bush administration is admitting defeat in at least one of their many constitutional abuses: the illegal wiretapping program administered by the NSA. With investigations by the Democratic Congress looming, the Justice Department has come to an agreement with the Foreign Intelligence Surveillance Court. In case you’ve been living in a cave in Afghanistan, the FISC is the court which is supposed to approve such secret operations as outlined in the Foreign Intelligence Surveillance Act of 1978. Attorney General Alberto Gonzales has repeatedly argued that Congress implicitly gave Bush the authority to bypass the FISC after 9/11, a position with which many in Congress strongly disagree.

The new agreement means the FISC will once again be the final authority on the secret wiretapping program. The NSA will need to request a warrant for each case. One of the administration’s cited reasons for bypassing the court in the first place was that the process was too slow and cumbersome to keep up with the terrorists. Apparently the new agreement ensures that things will be speedy. Many members of Congress have said repeatedly that if the administration had come forward with their concerns in the first place, the same sort of agreement could have been put in place from the beginning.

So what brought about the change of heart? Why has the Bush administration suddenly decided that it’s better to have the FISC oversee the program than not? According to one anonymous official:

“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.”

It’s a preemptive move, is what it is. The time is coming when the administration will have to answer for its past deeds in long overdue oversight hearings. Out of all of the controversial Bush activities, this one likely has the most potential to blow up in his face. The program has already been declared unconstitutional by one federal court judge. The result of an appeal is pending. It’s not hard to imagine that Bush is bringing the program back within the bounds of the law in order to influence the appellate court’s decision and the outcome of Congressional oversight hearings. The Democrats don’t intend to let that happen:

Some legal analysts said the administration’s pre-emptive move could
effectively make the court review moot, but Democrats and civil rights
advocates said they would press for the courts and Congress to continue
their scrutiny of the program of wiretapping without warrants, which
began shortly after the terrorist attacks of Sept. 11, 2001.

…

“The announcement today is welcome news,” 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.”

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

I won’t be surprised to see more concessions by Bush in the next few months, as more of his actions line up under the Congressional telescope. But whatever he does to make good, we must not lose sight of all of the bad he has done. To let him go unpunished would be a terrible mistake, setting a precedent for future presidents who feel the urge to step beyond their authority.

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