background: as i blogged about below a big news story late yesterday-early today was that the bush administration was going to start complying with FISA. but then it turned out that's not exactly what happened. instead the bush administration reached some kind of agreement with the court that issues FISA warrants (the FISC) and that agreement was the basis for the claim in gonzales' letter that all future surveillance will be "subject to the approval" of the FISC.
which raises the issue of what exactly that agreement says. some have hypothesized that the whole thing might be a sham:
What seems to have happened is that they convinced one single FISA judge whom they like to sign a broad, sweeping Order allowing them to do everything they were doing before but declaring it all to be in compliance with FISA.the problem with such a broad order is that the order itself would not be valid. the FISC is a court of limited jurisdiction. it's only authority is to administer the terms of FISA. (see 50 U.S.C. 1803(a) (establishing that the FISC shall have "jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter"))
because FISA requires a case specific finding of probable cause, a general order giving blanket justification for any future surveillance would itself violate FISA and thus would be beyond the powers of a FISC judge. also 50 u.s.c. 1805 limits the period of time that a FISA warrant can be used to before it must be reauthorized. so not only does FISA prohibit blanket permission to engage in surveillance, a FISC judge cannot authorize surveillance indefinitely.
which is why the administration's refusal to release this agreement is both frightening and a little bit comic. if they really sought a ruling to justify their surveillance program, then why don't they just justify it? telling members of congress that they have an agreement which makes everything kosher and then not letting them see the agreement is only going to make congress more curious and press harder to look into what is really happening here. the whole thing is so ridiculous. rather than settling the issue, the administration's actions are likely to just stir up more trouble and more embarrassing headlines about a lawbreaking president.
