A deal negotiated between the White House and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) came with conditions. Bush is insisting that Congress first give him new leeway in some areas of surveillance and that all lawsuits challenging his eavesdropping policy be funneled to a Washington-based intelligence court that operates in secret.
Bush agreed voluntarily to submit his program to the court named for the 1978 Foreign Intelligence Surveillance Act, or FISA, contingent on Congress passing legislation drafted by Specter and administration lawyers.
The legislation would allow the Justice Department unlimited attempts to revise the program to meet the court's approval and would allow it to appeal adverse court rulings. It would also give the NSA in emergency situations a week rather than the current 72 hours to eavesdrop on a domestic target without requesting a warrant, and it would allow the government to send to the FISA court all lawsuits challenging the program's legality. Some suits, filed by groups such as the American Civil Liberties Union, are already pending in various federal courts.
Kevin Drum is not impressed:
Let me get this straight. Specter's bill gives Bush the "option" of submitting the NSA program to the FISA court for review, and Specter has a handshake agreement with the White House that Bush will, in fact, submit it. What's more, it's a one-time deal that affects no other program and no future president.
What's the point of this? The president already has the "option" of submitting the NSA program to the FISA court for review. He can do it anytime he wants. I'm a little mystified about exactly what this legislation is supposed to accomplish.
Nonetheless, despite how the Bush administration will try to characterize it, this is a reversal from their prior position that the NSA program could not be subject to judicial review, even by the FISA court, and that it's legality was assumed under the president's inherent authority as provied by Article II of the Constitution.