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July 13, 2006
Bush Agrees To FISA Oversight On NSA Program

Senator Arlen Specter says that the White House will support a bill that allows the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Terrorist Surveillance Program. The bill makes the submission to the FISA judges voluntary, and Bush agreed to approve the legislation and submit the program as long as it remains voluntary:

The White House has conditionally agreed to a court review of its controversial eavesdropping program, Senate Judiciary Chairman Arlen Specter said Thursday.

Specter said President Bush has agreed to sign legislation that would authorize the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the National Security Agency's most high-profile monitoring operations. ...

Specter said the legislation, which has not yet been made public, was the result of "tortuous" negotiations with the White House since June.

"If the bill is not changed, the president will submit the Terrorist Surveillance Program to the Foreign Intelligence Surveillance Court," Specter said. "That is the president's commitment."

I'm sure that quite a few people will find themselves very disappointed in this compromise; I'm not sure I agree. For those of us who argued that any authorization to wage war obviously includes the authority to gather intel on enemy communications, it also follows that the executive can still consult with Congress on how best to do that. The deal Specter announced does not detract from that power, but allows both the White House and the Congress to get a determination on that particular argument. It also allows both to challenge the FISA ruling and get a clear answer from the Supreme Court.

The bill itself does not strip power from the executive, now or in the future. The submission remains voluntary; in fact, as Senator Pat "Leaky" Leahy points out, the White House could submit the program for a FISA ruling now. However, the legislation now also allows the NSA to argue that the court has no jurisdiction over purely international communications that get routed through American equipment. It also allows FISA warrants to remain active for seven days rather than three, reducing the need to get more warrants on live leads.

It appears to me that the Bush administration gave up little in this exchange except their insistence on avoiding compromise. By the time FISA rules on the program and the appeals get through the Supreme Court, Bush will have retired to Crawford. He may lose a little face and have to endure a little gloating from those who can't see the forest for the trees, but in the end he will still have his programs and still hold the executive power to run them.

UPDATE: Michael van der Galien has a nice roundup at TMV on the reaction. Glenn Greenwald figured it out right away, although he and I obviously have differing opinions on the result.

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Posted by Ed Morrissey at July 13, 2006 3:14 PM

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» Battered Bush Syndrome from Hard Starboard
"Snarlin' Arlen" is just trying to save face. The key to this "compromise" is that subjecting the TSP to FISC review is voluntary. If he chooses not to do so, this legislation allows that refusal. If he chooses otherwise, he's not doing anything he c... [Read More]

Tracked on July 14, 2006 12:54 AM

» Review It. Or Not. from Liberty and Justice
An option seems - to put it extremely mildly - a little bit awkward to me. Either one believes it is highly important for a Court to review the Constitutionality of the program, or one believes it isn't necessary at all. As I wrote before I believe it ... [Read More]

Tracked on July 14, 2006 1:30 PM


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