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Wiretap shift raises questions

The public has known about the warrantless domestic wiretapping program of the Bush administration since the New York Times broke the story in December 2005. It took from then until the day before Attorney General Alberto Gonzales was scheduled to appear before the new Democratic-controlled Senate for the administration to finally bring its intelligence-gathering into compliance with the law. We appreciate the action but are left to wonder what took so long and whether there is less here than meets the eye.

It was a shocking revelation when the newspaper reported that the National Security Agency had been authorized by President Bush to monitor the international phone calls and e-mails of people inside this country suspected of terrorist links. Congress, under the Foreign Intelligence Surveillance Act, established a process for warrants to be issued by a secret court when counterterrorism or counterintelligence was at issue. Yet Bush's order ignored the jurisdiction of this court and approved spying on Americans without any court oversight.

After the program came to light, Bush refused to acknowledge its extralegal nature, declaring instead that he had the inherent authority as commander in chief to order warrantless eavesdropping. This stunning position was reiterated by Gonzales on Thursday during questioning by members of the Senate Judiciary Committee.

The administration's ongoing claim of supreme executive authority adds a measure of discomfort to its overdue concession to the rule of law. The attorney general informed Congress in a letter on Wednesday that the administration will shut down its warrantless eavesdropping program in favor of one that respects the FISA court's jurisdiction. But in his testimony before the Senate committee, Gonzales gave no assurances that the administration would not revert to its old ways in the future.

Maybe that is why lawmakers from both parties were left wondering what the administration is really up to. Questions were raised about why it took five years to bring the NSA eavesdropping program into compliance with FISA. Some senators wanted to know whether the administration was making individual showings to the FISA court, as is constitutionally required, or requesting broad warrants that could be used to spy on many people at once. Gonzales was not forthcoming.

The purpose of the sudden change in policy appears to be an attempt by the administration to avoid having its authority questioned, investigated and potentially curtailed by Congress. The demise of warrantless spying is a desirable policy reversal, even if it is not clear that there has been a change of attitude in the White House.

[Last modified January 21, 2007, 22:01:47]