After a year of stalling, and a year of insisting that the secret FISA court couldn’t provide warrants for the monitoring of all of the citizens whose phones they wanted to tap, the Justice Department announced that the secret court is to govern wiretapping plan.
When the program was revealed a year ago, people who knew the law knew that it was illegal. FISA provides the exclusive way for the government to get warrants for intelligence-gathering using wiretaps of American citizens and other residents of this nation. The only way the government is allowed to intentionally tap an American’s phone calls would be through a warrant from the FISA court or through a standard judicial warrant (which requires a higher standard of evidence than a FISA warrant).
Administration flunkies insisted that the FISA court was too slow or too picky for their secret plan, and so it was necessary to violate the plain text of the nation’s laws. Attorney General Gonzales wrote to Congress, informing lawmakers that a judge on the FISA court had issued orders “authorizing the government to target for collection international communications into or out of the United States where there is probable cause to believe” that one of the targets is a member of al-Qaeda or an associated group.
As Gonzales explains it, this result could be carte blanche for the administration to do as it had done. It could also be a capitulation by a White House fearful of prying Congressional committees, and the likely success of various court cases.
This is a victory to the extent that the independent judiciary is reviewing this program. That was always the main objective of activists opposing the program, and I’m glad to see the administration making at least a feint towards obeying the law. Given the recent revelations about the expansive use that national security letters are being put to, the broader issue of this administration’s abuse of its power to unilaterally compel production of records deserves careful review by Congress.
I hope this does not block Congressional review of this administration’s disregard of the law on this and other matters. Unless Congress re-asserts the rule of law, a dangerous precedent will be set that can do no good to this nation.