Republican members of the Senate Intelligence Committee have reached a deal with the White House concerning the NSA's warrantless wiretaps that does what I predicted in a column last month: It allows members of Congress to say they're asserting their constitutional authority, even while President Bush refuses to acknowledge it. According to The New York Times, the senators are backing legislation that would "allow the president to authorize wiretapping without seeking a warrant for up to 45 days if the communication under surveillance involved someone suspected of being a member of or a collaborator with a specified list of terrorist groups and if at least one party to the conversation was outside the United States." After 45 days, the warrantless monitoring could continue if the attorney general said it was necessary for national security.
The administration is supposed to keep a new seven-member "terrorist surveillance subcommittee" in each house up to speed on the wiretap program, providing updates every 45 days. You might wonder why we need terrorist surveillance subcommittees when we already have a secret Foreign Intelligence Surveillance Court that was created to keep tabs on wiretaps involving national security. The answer is that the administration refuses to recognize the court's statutory authority. So now members of the intelligence committee are hoping the White House will follow a new law that lets it do what it was already doing, but with a few more legislators in the loop.
The legislation actually would approve surveillance wider than the administration says it has been conducting. The NSA program supposedly has been limited to communications involving suspected Al Qaeda operatives and hangers-on. The proposed legislation would apply to people the administration believes are linked to any of several terrorist groups.
Meanwhile, Bush is not conceding that he needs congressional authorization at all. "We're eager to work with Congress on legislation that would further codify the president's authority," says a White House spokeswoman. "We remain committed to our principle, that we will not do anything that undermines the program's capabilities or the president's authority." In other words: You go ahead and pass your bill if it makes you feel better. We won't feel obligated to follow it unless it happens to coincide with what we were planning to do anyway.