*“As a result of these orders, 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,” Gonzales wrote in the letter, a copy of which was obtained by The Associated Press.
“Accordingly, under these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires,” the attorney general wrote.*
All it took was a court order, a change of political control of congress, and several months of delaying the inevitable.
You may be wondering what’s left to debate here. Well, see, noted Doper Bricker and I had a friendly little wager on the outcome of an appeal of the court order. I don’t remember enough about the details of the wager to know if this would constitute victory, or render the whole thing moot…
The cynic in me wonders how much electronic surveillance was occurring but not as a part of the Terrorist Surveillance Program…
Hmmm…looks like a different program than the wiretapping. Maybe a friendly mod could change the title of the thread to let “Wiretapping” bat for “Spying”? I was sloppy with the wording…
It seems to me that the domestic wiretapping program is very much alive.
Here’s the actual public letter from Gonzalez to the Senate committee. The letter seems to say that instead of being a wiretapping program authorized by the President, the administration got a blanket order permitting the program from a [single] judge of the FISA court.
In other words, the program was changed from a unilateral Presidential program to one signed off on by a single friendly judge.
Although I don’t know much about search and siezure law, I do not believe that this change varies the illegality and unconstitutionality of the program, as identfied by the Michigan federal district court (pdf of opinion) that enjoined it (an injunction stayed by the Sixth Circuit pending appeal). The one difference is that instead of a Presidential authorization, which seems to plainly violate the FISA, a judge of the FISA court has ordered a blanket authorization of wiretaps. However, as the Michigan opinion points out, the FISA requires specific warrants for each wiretapping (though they may be obtained 72 hours after the actual wiretapping where necessary), and though we do not know the scope of the current FISA court order, I don’t see how it could meet the requirement that each wiretapping must be by a (possibly post-survailance) warrant specific to the situation. Moreover, FISA court authorization does not address the First and Fourth amendment problems with the program.
In short, it is weak administration sleight-of-hand – little more than a fig leaf – to try to cover one of the obvious flaws in a multiply flawed program.
This is the original GD Thread discussing the Michigan decision. (In that thread, Bricker and I, among others, made a small wager on the eventual appellate result of that decison. I don’t think that this minor change renders the bet academic, nor does this change my conclusion that the program will eventually be rejected as unconstitutional by a definitive appellate holding, so I’m willing to continue the bet on those terms, but I await comment from the other wagerers.)
If the circuit court dismisses the appeal as moot, then I’d argue the bet is academic, since the whole point was getting a ruling on the merits. If the Sixth Circuit doesn’t dismiss as moot, then we’re still in play.
I’m happy with those conditions, which are more favorable to me.
If the Sixth Circuit dismisses (or even if it doesn’t), I wonder what avenues are open to challenge the FISA Court order that AG Gonzalez outlines in his letter to the Senate Committee. The Michigan federal court ruled that the plaintiffs there had standing to challenge the Presidentially authorized program. Presumably they would also have standing to challenge the legality of a wiretapping program authorized by a court order, but in which court. There is a FISA Court of Review, but its jurisdiction appears only to be invoked when the government appeals the denial of a FISA warrant.
Nope, they are tricking us. The AG says the " Terrorist Surveillance Program" will obey the law. I bet we have the “Secret Double Terrorist Surveillance Program” in full gear already. But trust us, the Terrorist Surveillance Program is dead. Really.
I tend to agree with Billdo that there isn’t much of a change. From the limited information, such as one official calling the change “programmatic”, it appears to me that the only thing this administration did was get one judge to sign off on the entire program, rather than agreeing to seek warrants on an individual basis (which would, once again, appear to violate FISA).
It seems to me that this is a shrewd, legal move meant to avoid judicial determinations on the legality of the program as it has been done for 5 years. I’m certain that the 6th Circuit, and the SDNY, will be getting motions to dismiss their pending cases as moot. The only problem is that the new program, if it is indeed “programmatic” is that it is simply a different way of violating the law.
Although I do hope this administration came to its senses and decided to comply with the law, I have a hard time believing it. And it does call into question the sincerity and sufficiency of this administrations prior arguments that the President did nothing wrong.
The abandonment of the program is good news. However, the precedent for running such a program exists and it was stopped before a final, legal judgement was made leaving things still up in the air. Given a favorable political environment future administrations could secretly reinstate the program and it would be another 5 or 10 years before anyone knew about it and brought a legal challange.
Oversight may be too strong a word. According to Representative Heather Wilson, Republican of New Mexico, it seems the court’s approval may be programmatic
That’s more an act of ‘rolling over’ than ‘oversight’.