One step forward -- Dance for the Headline -- One step back

Earlier this evening I though the Bush administration had finally cracked the spine on and actually read their copy of the Constitution.

Yesterday, they announced the end of the illegal surveillance program. This is the eavesdropping program the adminsitration claims is used only on terrorists. They felt they had the righ to listen in on any phone call originating overseas without a warrant.

This is, of course, despite the fact that they could go to the FISA court and get a warrant in secret. They could even get a warrant the next day if an emergency required them to eavesdrop without a warrant.

But that wasn't good enough. The administration felt it was apparently not subject to judicial oversight.

Then they relented.

Bush gives ground on domestic eavesdropping program

By Dan Eggen and Peter Baker

The Washington Post

WASHINGTON — The Bush administration said Wednesday it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort to be overseen by a secret court.

The change — revealed by Attorney General Alberto Gonzales in a letter to leaders of the Senate Judiciary Committee — marks an abrupt reversal by the administration, which for more than a year has aggressively defended the legality of the NSA program and disputed court authority to oversee it.

Under the new plan, Gonzales said, the secret court that administers the Foreign Intelligence Surveillance Act (FISA) will authorize eavesdropping on telephone calls and e-mails to and from the United States when "there is probable cause to believe" that one of the targets is a member of al-Qaida or an associated terrorist group.

Such intercepts previously were authorized by intelligence officers without the involvement of any court or judge — prompting charges by privacy advocates, many Democrats and some Republicans that the program was illegal.


Bush hardly has surrendered his effort to broadly define the commander in chief's authority to wage war, saying last week that Congress has no business trying to stop him from sending 21,500 more troops to Iraq. In other ways, though, he has engaged in a series of strategic fallbacks intended to fend off escalating political and constitutional challenges.

"You can only be at odds with two-thirds of the people on a limited number of issues," said Jack Quinn, White House counsel under President Clinton.

The latest move, though, represents a stark shift for a president who made the NSA surveillance program one of his central battles last year. Bush vigorously attacked Democrats on the campaign trail for opposing his program, accusing them of not wanting to eavesdrop on terrorist telephone calls. Democrats bristled, saying their main concern was the unchecked power Bush was claiming to override traditional constitutional liberties.

I'm gald they took this step, but this doesn't mean the administration is doing a good thing. It means they may stop doing a bad thing. Someone who is hitting you does not deserve kudos just because they stop hitting you.

But just as soon as the administration announced the plan, they back tracked on it. Sure they'll use the FISA court, but they won't tell us -- or Congress -- anything about the program.

Wiretap court still under wraps; no details given on review process
By Richard B. Schmitt, Greg Miller and David G. Savage

Los Angeles Times

WASHINGTON — A day after announcing that it had scrubbed a controversial warrantless-surveillance program, the Bush administration refused to provide details to Congress of how a new court-review process for eavesdropping on terror suspects would work, triggering a fresh round of complaints and suspicions from Democrats. At the same time, President Bush and other administration officials indicated that little had changed in the electronic eavesdropping program, originally launched after the Sept. 11 attacks, other than the fact that a court had finally blessed it.

Pressed during a hearing Thursday before the Senate Judiciary Committee, Attorney General Alberto Gonzales said the administration had changed the legal justification for the surveillance program but not its essential elements. Gonzales revealed Wednesday that the secret court created by the Foreign Intelligence Surveillance Act to supervise wiretaps approved orders authorizing the surveillance last week.

Disputing the suggestion that the warrantless program, run by the National Security Agency, had been "terminated," Gonzales said: "It took us a period of time to develop what we thought would be an ... argument that would be acceptable to the FISA court."

When asked to explain the legal argument, Gonzales refused. "I don't want to get into a public discussion about the deliberations and work of the court," he said.

With Gonzales and other officials mum about the program's details, Democrats refused to accept their assurances. It was not immediately clear how that stalemate might be resolved. The administration supplied classified briefings to several members of Congress, but lawmakers said they continued to have questions.

"I don't think there were any assurances today" that the White House is not still bypassing parts of FISA, Rep. Anna Eshoo, D-Calif., a member of the House Intelligence Committee, said in a telephone interview.

The Senate Judiciary Committee chairman, Sen. Patrick Leahy, D-Vt., and the ranking Republican on the panel, Sen. Arlen Specter of Pennsylvania, said the chief judge of the FISA court had promised them access to the court orders approving the surveillance. But Gonzales indicated at the hearing that the administration might attempt to block the move.

"Are you saying that you might object to the court giving us a decision that you publicly announced?" Leahy said. "Are we a little Alice in Wonderland here?"

The administration's decision appeared to leave Congress with few options. Legal experts said the main option Congress has left is to change the FISA law under which the court has acted, although lawmakers acknowledge they have too little information at this point to know whether that would be necessary.

So things may or may not be any better. The administration is saying there may be some oversight, but denying Congress it's oversight duty. We almost got some of our 4th Amendment rights back.

Now,if only we could get back the right to a trial by jury, and the ability for anyone arrested to appeal their arrest to a judge.

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

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