The White House has reached a deal with Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) under which the Foreign Intelligence Surveillance Court will be asked to pass judgment on the Bush administration's warrantless surveillance of e-mail and phone calls involving people suspected of links with terrorism. This puts the court, which is the body charged by law with approving surveillance of suspected foreign terrorists and spies, in the strange position of saying whether it minds being ignored. Under Specter's legislation, the Bush administration will be permitted (but not required) to ask the court for a constitutional thumbs up or thumbs down on the whole surveillance program. The proceedings leading to that decision (like the court's warrant approval process) would be secret, and so might the decision itself. If the court decided the president does not have inherent authority to violate the Foreign Intelligence Surveillance Act, the administration could ask the rarely convened FISA appellate court for a second opinion, possibly followed by an appeal to the U.S. Supreme Court. It's not clear whether any of these decisions would be made public.
I have a different suggestion: Instead of asking the Foreign Intelligence Surveillance Court for general approval of whatever eavesdropping the Bush administration might want to do in the name of fighting terrorism, how about asking it to approve specific surveillance targets, as the law requires? If immediate action is required, how about seeking retroactive approval, as the law allows in emergencies? And if showing that there's probable cause to believe a target is an agent of a terrorist group is an unreasonable burden when the goal is to prevent attacks, how about asking Congress to change the standard? None of the president's men has ever given a satisfying reason for refusing to follow this course, which happens to be the one required by statute and by the Constitution.