Bush's Reversal on Wiretaps Is Less Than It Seems


By Ann Woolner

Jan. 19 (Bloomberg) -- One of the first lessons lawyers learn is that if a judge agrees with you, stop arguing and sit down.

This concept is more widely known as don't look a gift horse in the mouth.

Thus, I should probably greet with simple appreciation the Bush administration's decision this week to reverse course and seek court permission before listening in on certain phone calls.

The switch comes more than five years after President George W. Bush ordered the National Security Agency to listen in on international calls involving al-Qaeda suspects without court approval, even if a U.S. citizen is on the line.

It means the administration finally will stop breaking a 1978 law, the Foreign Intelligence Surveillance Act, which Congress passed to rein in federal agents who were spying on American dissidents.

Persuasive legal authorities say FISA required the administration to get prior approval from a special, secret court before authorities start listening in on Americans' calls.

As for the need to move quickly, the law sets out emergency procedures to protect national security.

Bush and his minions have been arguing for years -- to Congress, courts and the public at-large -- that when Congress authorized him to use military force in the war against terrorism, it authorized him (without actually saying so) to listen in on these calls without a warrant, FISA notwithstanding.

Another Theory
And for those who didn't buy that theory, the administration had another one. The Constitution gives the president inherent authority to eavesdrop for national security reasons, the White House argued.

So now Bush has seen the light. Hooray and hoorah!

The rule of law has prevailed, and the balance of power is restored!

Well, not entirely. Bush is walking the walk, but not talking the talk.

"That belief continues today that he does have the authority under the Constitution to engage in electronic surveillance of the enemy in a limited basis during a time of war'' without court permission, Attorney General Alberto Gonzales told the Senate Judiciary Committee yesterday.

Authorizing Force
As for the use of force encompassing use of wiretaps, the administration still holds that position, too, according to White House Press Secretary Tony Snow.

Gonzales and Snow explained that, even though the administration believes it can ignore the 1978 law, officials began working with the Foreign Intelligence Surveillance Court back in the summer of 2005 to streamline the process of getting approval for eavesdropping.

As Gonzales tells it, the administration began that effort months before the New York Times disclosed the existence of the program in December 2005, which ignited the controversy and spurred lawsuits to stop it.

Last August, a federal judge in Detroit said the eavesdropping was unlawful, indeed. That decision is on appeal and is scheduled for argument in two weeks.

Convenient timing for a change in position, it would seem.

"This wasn't motivated by the litigation,'' Gonzales told the committee. "We began this process well in advance of the disclosure of the program, and, thus, well in advance of the litigation.''

Streamlining the Rules
Snow said the same thing when he talked to reporters about it this week.

"We've been doing this long before the criticisms arose,'' he said.

There are problems with that assertion. For one thing, even if officials started the talks with the secret court before the New York Times story broke, they knew quite well that the newspaper had the story and wanted to publish it. In fact, the Times acknowledged it was ready to run it in the fall of 2004 but sat on the story for more than a year while the administration argued against publication.

So while Bush officials say their motives were pure -- and they didn't act under pressure -- they had to know it was just a matter of time before the program was made public and an outcry would result.

More distressing is the fact that the administration waited for almost four years to even begin to look for a satisfactory way to comply with the law. And it has taken a year and a half to find that way and to get court approval for the surveillance.

"There hasn't been a sufficient sense of urgency,'' complained Arlen Specter, a Pennsylvania Republican who headed the Senate Judiciary Committee before the Democrats took control.

No Clues
What's more, the administration never let on, not even in private talks with key senators, that it was working on the problem, Specter pointed out.

"I can't understand,'' Specter said, why "this committee and I were not made privy to what was going on so that we could help you.''

So what? All's well that ends well, right?

The thing is that throughout Gonzales's testimony yesterday, whether the topic was wiretapping or torture, searching through citizens' mail or refusing to give Congress what it needs to conduct oversight, he made it clear that this president isn't going to obey whatever laws he deems unconstitutional, no matter what his negotiators agree to while working with Congress.

The change of policy on the surveillance program is nothing more than that. Congress is still going to have to yank hard if it wants the power to be truly balanced.