The Bush administration has apparently concluded that fighting to retain the warrantless surveillance program with a Democratic Congress would eventually be unsuccessful, and today announced that the presidential authorization for the program would not be renewed. Instead, the Department of Justice will transfer oversight responsibility to the FISA court, effectively ending the controversy over one of the most contentious counterterrorism projects adopted since 9/11:

The Justice Department, easing a Bush administration policy, said Wednesday it has decided to give an independent body authority to monitor the government's controversial domestic spying program.

In a letter to the leaders of the Senate Judiciary Committee, Attorney General Alberto Gonzales said this authority has been given to the Foreign Intelligence Surveillance Court and that it already has approved one request for monitoring the communications of a person believed to be linked to al-Qaida or an associated terror group.

The court orders approving collection of international communications — whether it originates in the United States or abroad — was issued Jan. 10, according to the two-page letter to Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa.

"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.

This change of policy will surely raise a few eyebrows. One of the arguments the Bush administration made was that it could not reach accommodation with the FISA court on expedited authorizations for wiretaps on international conversations with one point inside the US, on phone numbers already flagged as potentially related to terrorists. It discouraged Congress from drafting legislation mandating a process for such actions, stating that the authorization for the use of military force (AUMF) granted them all of the authorization needed for such surveillance.

The new position seems like a significant climbdown on all fronts. References to the AUMF seemed significantly absent from their statement as reported by the AP. The expectation that Congress would grant retroactive approval for the process initiated by the NSA expired at the midterm elections. Now Attorney General Alberto Gonzales has done what the Bush administration said they could not do, which is to construct a process for expedited requests with FISA -- and they've already used it once.

On one hand, having this process remain in our counterterrorism arsenal is great news. However, for those of us who supported the White House on this contentious point, the speed in which they reached accommodation with FISA will call into question that early support. By my count, we've had ten entire weeks since the midterms and they've managed to scale a mountain that they claimed was insurmountable for the previous five years.

Perhaps more explanations will be forthcoming. I, for one, will be waiting.

UPDATE AND BUMP, 9:15 PM: Several bloggers insist that this is no climb-down by the White House but more of a surrender by FISA. My good friend and blog partner Dafydd at Big Lizards makes the case most emphatically:

The media refer to President Bush's announcement that he will not reauthorize the NSA al-Qaeda interecept program... now that the FISA court has finally stepped up and issued orders allowing the very same program to proceed with judicial support, making it virtually impossible for majority Democrats to kill off. Surprise, surprise on the jungle cruise tonight (no surprise to "George Orwell," however), the MSM play this story as if it were a historic victory over Bush.

I have the pleasant task of bursting the latest anti-Bush liberal triumphalism: the media take is complete rot. The only reason they bypassed the FISA court in the first place was that it was too slow... and at last, the court has agreed to reforms, crafted by Attorney General Alberto Gonzales, that not only dramatically speed up court review when necessary but also leave in place blanket approval of communications intercepts whenever there is probable cause to believe it's an al-Qaeda or related terrorist communication.

I don't want to excerpt too much of Dafydd's post because it should be read in full. However, I disagree with him about this being a Bush triumph, and my point can be found in the letter Gonzales sent to the committee:

In the spring of 2005 -- well before the first press account disclosing the existence of the Terrorist Surveillance Program -- the Administration began exploring options for seeking FISA Court approval.

This is my point, here. It's not that the program has ended; it obviously will continue. My anger is over the fact that the Bush administration insisted on two points: one, that the FISA court would not cooperate on streamlining the process for warrants on these intercepts, and the second that the Bush administration had the authority to proceed without it. They took everyone along for a big ride, making all sorts of legal arguments about the AUMF and Article II -- and now Gonzales has revealed that even they didn't really believe it.

If they were negotiating with FISA to place the program under their jurisdiction, then they must have agreed with their critics that insisted FISA was a covering authority for such action. And if they've spent the better part of two years reaching an accommodation with FISA, why not just tell people what they were doing when the program got exposed? And for toppers, why didn't they start negotiating with FISA in November 2001 when they started the program?

The Bush administration just torpedoed a large chunk of their credibility. This is in no way a victory for the White House, but a huge climbdown. All of that effort and argument went for absolutely nothing.

UPDATE II: Mark Levin understands:

For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?

It can if it never believed its own arguments, and the time frame of the FISA negotiations make that seem the case.

UPDATE III: Glenn Greenwald says, I told you so ... and he did.

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