The End of the Threat or The End of the Bluff?

In his radio address on December 17, 2005, President Bush said the following about the NSA warrantless surveillance program:

The activities I authorized are reviewed approximately every 45 days...I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.

On November 17, 2006--just two months ago--Dick Cheney repeated this pledge in a speech before the Federalist Society:

[T]he entire program undergoes a thorough review approximately every 45 days. After each review, the President personally has to determine whether to reauthorize the program. And he has done so more than 30 times since September 11th - and he has indicated his intent to continue doing so as long as our nation faces a threat from al Qaeda and related organizations.

Flash forward to January 17, 2007:

President Bush has decided not to renew a program of domestic spying on terrorism suspects, Attorney General Alberto Gonzales said on Wednesday, ending an law-enforcement tactic criticized for infringing on civil liberties.

"The president has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," Gonzales wrote in a letter to congressional leaders.

Wow, that must mean we no longer face "a threat from al Qaeda and related organizations," right?

Or maybe there's another explanation.

Back in July, after the Supreme Court issued its opinion in Hamdan, I wrote the following:

Government attorneys cannot, in good conscience, bless programs that are flatly inconsistent with existing Supreme Court precedent. And, in the wake of Hamdan, it's hard to see how any attorney could still conclude that article II and/or the AUMF give the President the authority to disregard the prohibitions of FISA. I don't see how the OLC will be able to justify signing off on its previously issued memo(s). At the very least, the memo(s) will have to be significantly reworked, because the arguments within them are now stale and discredited.

The White House will no doubt press very hard for the reauthorization of the program, but for government lawyers, this is going to be a real moment of truth. It's one thing to push the limits of the law on behalf of a client. It's quite another thing to take positions you know to be meritless. Even if you strongly believe that an argument should carry the day, there is a point at which you have to acknowledge that it hasn't. We've reached that point with respect to the arguments underlying the NSA program. I just hope the lawyers at the DOJ and NSA have the integrity to acknowledge it. If the President wishes to continue to disregard the law, he should have to do so without the blessing of the government's attorneys.

I suspect that the reauthorization process for the NSA program has not gone smoothly since the Hamdan opinion was handed down. I suspect that the White House has encountered increasing resistance from DOJ and NSA attorneys, who, if they're even minimally competent, can see the writing on the wall and know that their legal opinions will never survive any scrutiny. Within months of the Hamdan decision, the White House reversed itself and began actively lobbying for addition legislative authorization for the program, no doubt having been advised by concerned attorneys that it no longer had even a colorable legal basis for continuing to operate outside of FISA. This lobbying effort continued even after the November election as the White House engaged in one last desperate attempt to push legislation through the lame duck Congress.

But now that the Democrats are in charge, there is no realistic prospect of Congress passing legislation to legalize the program. And the Bush Administration has to know that it is just a matter of time before Congress starts asking hard questions and issuing subpoenas for the various legal opinions purporting to authorize the program. Under such circumstances, it seems unlikely to me that even the most pliant government attorney would be willing to sign an opinion justifying the continued violation of FISA.

It should come as no surprise then that the Bush administration has suddenly discovered a way to operate within the limits of FISA. I have no idea what sort of order the FISC judge has issued, and I certainly hope Congress demands that it be produced (and subpoenas it if necessary). But no matter how broad it is, I'm certain that it does not give the Administration everything it wanted. After all, the Bush Administration wanted the power to operate entirely outside of the FISA framework, without any judicial supervision whatsoever. The fact that FISA judges now have any role in the process, however small, is probably enough to give David Addington an aneurysm.

That said, I agree with Glenn completely:

There is nothing to celebrate here. We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the King deigns that it should and we then celebrate that he has agreed to comply with the laws we have enacted.

I also think Jack Balkin summed up the situation pretty well:

[T]he Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

What's happened here is that the Administration's bluff was called, or at least was about to be called. Though it has continued to talk tough, the Bush Administration has clearly been hoping for some time now that it would be bailed out by new legislation that would legalize warrantless surveillance and effectively moot the legal challenges slowly working their way through the courts. The election of a Democratic Congress foreclosed that option and left the Administration with no choice but to reach some sort of accommodation with the FISC. Continuing to work outside of FISA (at least openly) is no longer a viable option.