Maybe Bush didn't back down on wiretaps

Stop celebrating -- it's not yet clear whether the administration really intends to start obeying the law.

By Glenn Greenwald

Read more: Russ Feingold, Opinion, Alberto Gonzales, Glenn Greenwald

Jan. 18, 2007 | On Wednesday, Attorney General Alberto Gonzales notified the Senate Judiciary Committee by letter that the administration would now be seeking FISA court approval for wiretaps. As a result, the administration said that it will discontinue the president's so-called Terrorist Surveillance Program and will now instead conduct all eavesdropping under the purview of the Foreign Intelligence Surveillance Act, as the law requires. Not coincidentally, on Thursday morning, the attorney general will testify before the Senate Judiciary Committee. New chairman Pat Leahy and the rest of the committee's freshly empowered Democrats will, presumably, flay Gonzales for the Bush administration's failure to abide by the law for the past five years, press him to explain its sudden change of heart, and try to determine whether the administration's new posture will result in genuine compliance with both the spirit and the letter of the law.

On one level, it is encouraging that the attorney general has blinked and that he will be forced to answer questions from the likes of Russ Feingold at a hearing with the pleasing title "Oversight of the U.S. Department of Justice." And, all other things being equal, it is certainly preferable that the administration eavesdrop with oversight rather in secret. But on another, deeper level, there is no cause for celebration. We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the king deigns that it should.

But why might the president have agreed to cease violating the law? Last fall, a federal judge ruled that he had violated both the Constitution and criminal law, and an appellate court was about to hold arguments about that decision. And his loyal servants no longer control Congress. Clearly, a desire to avert a now inevitable confrontation with the courts and Congress over the lawless eavesdropping motivated the decision to abide by the law. Other than a rank fear of consequences, there is simply is no coherent explanation for the Bush administration's sudden abandonment of an illegal program that it had emphatically insisted was central to the "war on terror."

1) Why couldn't the new procedural rules pointed to by Gonzales simply have been instituted years ago, as part of a newly amended Foreign Intelligence Surveillance Act (which the administration requested and obtained from Congress in 2001, and which Congress repeatedly asked to do multiple times both prior to and subsequent to revelation of the president's lawbreaking in December 2005)?

2) If, as Gonzales claims in Wednesday's letter, the administration was working to develop new rules as early as the spring of 2005 to enable eavesdropping under FISA, why didn't it say so when the controversy arose over its lawbreaking?

3) For those who claimed that our national security was jeopardized and that terrorists were given our state secrets when the New York Times revealed that the president was eavesdropping without warrants, didn't Alberto Gonzales just "give the terrorists our playbook" by telling them how we are eavesdropping, i.e., that we are now doing so with warrants?

In January 2006, current CIA Director and former National Security Agency Director Michael Hayden warned that even discussing eavesdropping issues helps terrorists because it reminds them that we eavesdrop:

"You know, we've had this question asked several times. Public discussion of how we determine al-Qaida intentions, I just -- I can't see how that can do anything but harm the security of the nation. And I know people say, 'Oh, they know they're being monitored.' Well, you know, they don't always act like they know they're being monitored. But if you want to shove it in their face constantly, it's bound to have an impact."

Gonzales said this repeatedly, too -- that merely by raising the issue of eavesdropping, we remind terrorists that we eavesdrop. As a result, allegedly, they won't make the calls that they otherwise would have made to talk about their plots, and we won't know what they're doing and we won't be able to catch them.

Yet here the administration is not just reminding terrorists that we eavesdrop but detailing its new eavesdropping procedures in public.

4) Could the administration possibly think that this "concession" (what we call "obeying the law") is going to forestall or preclude congressional investigations into all of the eavesdropping it has been doing over the past five years without anyone watching? Clearly it won't, in either the Senate or the House. Here is new House Intelligence Committee chairman Silvestre Reyes on Wednesday:

"This announcement does not end our committee's interest in this matter. Until our committee has the opportunity to review the court orders and conduct in-depth oversight over this program, I am withholding judgment on whether it is effective and whether it protects the rights of the American people."

5) Is this magnanimous agreement to comply with the law supposed to relieve the administration of the consequences of lawbreaking? Defense Tech quotes Patrick Keefe, author of "Chatter: Dispatches From the Secret World of Global Eavesdropping," as wondering whether the "agreement" with the FISA court described in Gonzales' letter includes some sort of retroactive approval by that court for prior eavesdropping. I find that extremely difficult to believe -- among other things, retroactive approval beyond 72 hours of eavesdropping is barred by the FISA statute.

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