Not The Why But The What

OK, so I was completely dubious about yesterday's development, as AG Alberto Gonzalez sent Sens. Leahy and Specter a letter saying that the NSA warrantless surveillance program was not re-authorized, and that in the future all applications for surveillance will be sent to the FISA court for approval. This reminded me a lot of the Jose Padilla case. Just when the court system was about to force the government to charge Padilla or set him free, they charged him with a completely different set of crimes, negating the judicial oversight in the case. It seems like there was similar pressure on the DoJ in this case. But, as Jack Balkin explains, process is not as important as conclusion.

The ACLU case challenging the legality of the TSP (Terrorist Surveillance Program) is, at least for now, scheduled to be argued before the U.S. Court of Appeals for the Sixth Circuit in two weeks. And a decision in a related case is pending before Judge Lynch in the Southern District of New York. Does this development moot those cases? [UPDATE: DOJ has informed the court of appeals that it intends to file both classified and public papers soon "addressing the implications of this development on the litigation."]

Is the FISA court being asked to determine whether particular instances of surveillance satisfy FISA's substantive standards? (Presumably, but who knows?) To somehow do so on a category-wide basis, issuing generalized rather than case-specific orders? (That would be "innovative," that's for sure! Hard to see how the statute would allow it.) If so, why didn't this happen years ago? Might it have something to do with the prospect of a possible big government triple-loss on (i) state secrets privilege; (ii) FISA; and (iii) its article II arguments -- a development that DOJ would understandably be eager to avoid?

[UPDATE: Without knowing anything more about it, my sense is that this is probably a beneficial development, whatever its impetus might have been. I find it very difficult to imagine that the FISA court would roll over and approve an "innovative" legal theory if it were dubious -- especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly. Without the New York Times, and Judge Taylor, and the 2006 election, this would never have happened. Sunshine is the best disinfectant, and all . . . . Even though the public might never find out exactly what's up here, presumably Congress and the FISA court are now acting as some not-insignificant checks. And if so -- if the extreme and unilateral positions of the Executive are a thing of the past here, the system has worked.

This seems like a way for the Department of Justice and the President to live to fight another day on the unitary executive issue (perhaps they'd rather fight on signing statements?). Their legal arguments in this case were so substandard, and the rulings already issued went against them (Judge Taylor). Yes, it'd be great to see the previous instances of surveillance fully adjudicated. They do represent breaking the law, after all. But this is a major victory in the battle to establish a separation of powers again in this country.

And the National Review is freaking out, so that's always a good thing.

UPDATE: Wait a minute. It looks like they're trying to have FISA approve the whole program at once rather than approve individual warrants.

Ms. (Rep. Heather) Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, “programmatic” approval of the president’s surveillance program, rather than approval of individual warrants.

Administration officials “have convinced a single judge in a secret session, in a nonadversarial session, to issue a court order to cover the president’s terrorism surveillance program,” Ms. Wilson said in a telephone interview. She said Congress needed to investigate further to determine how the program is run.

Democrats have pledged to investigate the N.S.A. program and other counterterrorism programs they say may rely on excessive presidential authority.

As well they should. Breaking the law is still breaking the law, even if it's breaking the law in the past tense. And a blanket approval of the program in theory without looking at the individual warrants in practice would be fraught with problems. We'd be relying on the judgment of the President and the DoJ to make sure their warrants fit with what the FISA judge approved in broad outline. I don't have that level of trust.