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.