Legalizing domestic surveillance

Mike Allen repots at Time.com that the Bush administration is looking to gain Congressional approval of its warrantless wiretapping problem program: Even as the White House launches a media blitz to portray its controversial wiretapping program as a perfectly legal weapon in the war on terror, administration officials have begun dropping subtle hints?without explicitly saying so?that President Bush could go to Congress to seek more specific authority to listen in on U.S. citizens who are suspected of entanglement with terrorists. Attorney General Alberto Gonzales added to such speculation Tuesday by asserting during a series of television interviews that the law setting up an apparatus requiring warrants for such eavesdropping?the Foreign Intelligence Surveillance Act, or FISA?might be outmoded. "I think we all realize that since 1978, when FISA was passed, there have been tremendous changes in technology," he said on CBS's "The Early Show." "We are engaged in a debate now, a conversation with Congress about FISA and about these authorities." During a speech a few hours later at Georgetown University Law Center, Gonzales made another reference to the possible need to update the law, pointing to the authorization Congress gave Bush to pursue terrorists after the Sept. 11 attacks as part of the justification for the current program. "It is simply not the case that Congress in 1978 anticipated all the ways that the president might need to act in times of armed conflict to protect the United States," said Gonzales, who also said Bush was simply following in the footsteps of such presidents as Washington and FDR who had also used military surveillance without warrants. "FISA, by its own terms, was not intended to be the last word on these critical issues." No such move is imminent, a top aide stressed. But administration lawyers are said to be debating whether the President would be better off putting the monitoring on more solid footing, or whether seeking additional latitude would amount to admitting the government had not been following the law. The most likely route would be an amendment to FISA, sources said. Lawyers following the controversy perked up their ears when Gonzales said at Georgetown that the government could begin monitoring based on whether there was a "reasonable" basis to believe the subjects were linked to terrorism. Some lawyers contend that is lower than the "probable cause" standard established by FISA. Gonzales said that the "terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al-Qaeda or affiliated terrorist organizations." But he added: "'Reasonable basis to believe' is essentially the same as the traditional Fourth Amendment probable cause standard." Three thoughts on this: 1) If I were a Bush political advisor, I'd advise him to ask for congressional approval. It's the smart political move, because it engages in political jujitsu -- it ends the debate about the legalit of what happened in the fall of 2001 and refocuses attention on the merits of amending FISA. The liberal bloggers I read have allowed that amending FISA to allow what the NSA is currently doing might be appropriate. Like the House vote on Murtha's withdrawal proposal a few months ago, this kind of vote forces Bush critics to put up or shut up. 2) I still don't understand why Bush didn't include a FISA amendment in the Patriot Act when it was first passed in the fall of 2001. Can anyone explain this? Really, I blegging here. 3) Kevin Drum has been doing some excellent blogging on this topic. I can't really disagree with his characterization of the state of play right now. UPDATE: The initial title to this post was a misnomer -- apologies.