A Switch in Time

On the eve of his first appearance before the Senate Judiciary Committee since control of that chamber changed hands, Attorney General Gonzales yesterday announced what appears to be a timely tactical retreat in connection with the administration’s controversial domestic spying program. 

According to a letter sent to the committee’s new chairman, Sen. Patrick Leahy (D-VT), and its ranking member, Sen. Arlen Specter (R-PA), “any 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.”

Indeed, according to the letter, the FISA court has already granted such approval under orders issued on January 10, 2007, “authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to belief that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.”

If this announcement means that the government will no longer carry out unlawful surveillance of Americans without an individual warrant based on probable cause, then it is to be welcomed. But before the senators give the administration their blessing, they must be satisfied that this is not a fresh attempt to circumvent the independent case-by-case review which the Constitution requires before the government may lawfully intercept domestic communications.

They must have assurances from the government and the FISA court itself that “approval of the Foreign Intelligence Surveillance Court” means a judicial determination based on a showing of probable cause in every instance in which the government seeks to carry out a domestic wiretap, not a general warrant giving the government blanket approval to eavesdrop on hundreds or thousands of Americans.

The senators are also entitled to ask why the administration is suddenly willing to abandon a program which the President has repeatedly insisted is essential to the national security, and why, if it is finally prepared to abide by the law, it fought so long and hard to avoid doing do.

Mark Agrast is a Senior Fellow at the Center for American Progress