Big Lizards:Blog:Entry “More Sound and Fury, Signifying

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July 13, 2006

More Sound and Fury, Signifying - Nothing Much

Hatched by Dafydd

Discussion about the Bush administration's supposed about-turn on the NSA al-Qaeda intercept program is floating around the antique media today, and the usual suspects are crowing that Bush has caved. But I really think there's less here than meets the eye:

In a reversal, the White House has agreed to allow a secret federal court review of the National Security Agency's warrantless domestic spying program, a top U.S. Senate Republican announced on Thursday.

Senate Judiciary Committee Chairman Arlen Specter said he had negotiated a bill with the White House to update surveillance laws and clear the way for an examination of the constitutionality of the program designed to track terrorists.

This refers of course to the Federal Intelligence Surveillance Act Court (FISA Court), which will review the NSA program for constitutionality... which of course it could do anyway, with or without the president's approval, simply by accepting a case filed by, e.g., some lefty Democrat in a safe seat.

Specter said that under the deal the court would determine the program's constitutionality based, in part, on arguments presented by the administration.

The court would also examine if the program is "reasonably designed to ensure that the communications intercepted involve a terrorist, agent of a terrorist or someone reasonably believed to have communicated or associated with a terrorist."

This, of course, is an argument that the NSA can easily win... especially if White House attorneys have been keeping up with Power Line!

But if one actually reads deep into the articles, it becomes clear that this is much more of a capitulation by the anti-war senators than it is by the White House.

For example, here is one very important point that may well be overlooked -- at least by folks (on either left or right) desperate to portray the Bush administration as having folded:

"The bill recognizes the president's constitutional authority and modernizes FISA to meet the threats we face from an enemy that knows no bounds, kills with abandon and masquerades as they plot against us," [White House spokeswoman Dana] Perino said.

I interpret this as intimating that the bill recognizes the inherent constitutional authority of the president to protect the country by eavesdropping on international calls of terrorists.

But there is more, according to the New York Times:

Specter said the court would make a one-time review of the program rather than performing ongoing oversight of it.

An administration official who spoke on condition of anonymity said the bill's language gives the president the option of submitting the program to the intelligence court, rather than making the review a requirement.

The official said that Bush will submit to the court review as long the bill is not changed, adding that the legislation preserves the right of future presidents to skip the court review.

In addition to these, the new legislation also implements two urgent clarifications:

Per a request by the National Securit Agency, the bill makes it clear that the FISA court has no jurisdiction over "international calls that merely pass through terminals in the United States;"

And this one is truly sweet: the bill would make it a new federal criminal offense for government officials to "misuse intelligence." Depending on the exact wording, this could actually apply to members of Congress, as well as administration officials, who leak classified information to the elite media, hoping to scuttle urgently needed intelligence programs they don't like.

So yet again, what is portrayed by the antique media of the White House caving, capitulating, or executing "a reversal" turns out, upon inspection, to be a good, strong compromise that preserves the president's authority to order such surveillance under his own plenary constitutional power and doesn't give up much at all.

Hatched by Dafydd on this day, July 13, 2006, at the time of 4:08 PM