The illusionists

A White House in retreat?

WASHINGTON, Jan. 17 — The Bush administration’s abrupt abandonment on Wednesday of its program to eavesdrop inside the United States without court approval is the latest in a series of concessions to Congress, the courts and public opinion that have dismantled major elements of its strategy to counter the terrorist threat.

In the aftermath of the 2001 attacks, President Bush asserted sweeping powers to conduct the hunt for operatives of Al Qaeda, the detention of suspects and their interrogation to uncover the next plot. But facing no new attack to justify emergency measures, as well as a series of losses in the courts and finally the Democratic sweep of the November election, Mr. Bush has had to retreat across the board.

“I think there’s no question that both politically and legally, the president has been chastened,” said Douglas W. Kmiec, professor of constitutional law at Pepperdine University and generally a supporter of the administration’s interpretation of executive power.

Harold Hongju Koh, the dean of Yale Law School and a critic of the administration’s legal theories, said the president’s strategy might have provoked so strong a judicial and Congressional rebuff that it would ultimately accomplish the opposite of his goal. “I think historians will see it as an exorbitant and extreme theory of executive power that ended up weakening the presidency,” Mr. Koh said.

That would be an extraordinary outcome, and one that is far from assured. In some areas, the administration has preserved its freedom to act, notably in persuading Congress last fall to deny prisoners held in Guantánamo Bay, Cuba, the right to challenge their detention in American courts. The full details of the new approach to the domestic eavesdropping program have not been publicly disclosed.

As my emphasis suggests, let's not get carried away just yet. We are talking about the Cheney administration here.

WASHINGTON, Jan. 17 — The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

[...]

Justice Department officials said that the FISA court orders, which were not made public, were not a broad approval of the surveillance program as a whole, an idea that was proposed last year in Congressional debate over the program. They strongly suggested that the orders secured from the court were for individual targets, but they refused to provide details of the process used to identify targets — or how court approval had been expedited — because they said it remained classified. The senior Justice Department official said that discussing “the mechanics of the orders” could compromise intelligence activities.

Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications.

But the officials suggested that the effort to obtain the court’s approval for orders on Jan. 10 was not easy. “These aren’t some sort of advisory rulings,” one official said. “These are orders issued by the FISA court, not some cookie-cutter order. These orders are complex. It took a long time to work on this.”

The officials said the new approach was based on evolving legal interpretations of the foreign surveillance law by the Justice Department, changes in the foreign surveillance statute in recent years and precedents set by the FISA court in approving specific requests to conduct electronic monitoring.

The N.S.A., which has run the program of surveillance without warrants since Mr. Bush secretly approved it in October 2001, is known to have used broad pattern analysis in tracking terrorist communications and identifying possible terrorists.

But senior lawmakers said they were still uncertain Wednesday, even after the administration’s announcement, about how the court would go about approving warrants, how targets would be identified, and whether that process would differ from the court’s practices since 1978.

The administration said it had briefed the full House and Senate Intelligence Committees in closed sessions on its decision.

But Representative Heather A. Wilson, Republican of New Mexico, who serves on the Intelligence committee, disputed that, and some Congressional aides said staff members were briefed Friday without lawmakers present.

Ms. 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. Senator Charles E. Schumer of New York said the announcement appeared to be intended in part to head off criticism Mr. Gonzales was likely to face at Thursday’s judiciary committee hearing.

“I don’t think the timing is coincidental,” Mr. Schumer said in a telephone interview. “They knew they had a very real problem, and they’re trying to deflect it.”

But Justice Department officials said the timing of the announcement was driven solely by the FISA court’s notification in recent days that it had approved the new orders. The officials said the orders were the result of two years of discussing with the court how to bring the eavesdropping program under court review, a process they said began long before the program become public.

A Justice Department official said the department would file a motion with the Court of Appeals for the Sixth Circuit in Cincinnati, arguing that the court’s review of the issue in a lawsuit brought by the American Civil Liberties Union “is now moot” in light of this week’s developments.

Innovative new arrangements, eh? Ones meant to avoid subjecting the president's breaking of the law to the scrutiny of the courts while still maintaining his "inherent right" to break the law. Yes, that's pretty innovative.

Meanwhile, in the Glorious War, Maliki has apparently learned a few things from his benefactors in Washington.

BAGHDAD, Jan. 17 — Facing intense pressure from the Bush administration to show progress in securing Iraq, senior Iraqi officials announced Wednesday that they had moved against the country’s most powerful Shiite militia, arresting several dozen senior members in the past few weeks.

It was the first time the Shiite government of Prime Minister Nuri Kamal al-Maliki had claimed significant action against the militia, the Mahdi Army, one of the most intractable problems facing his administration. The militia’s leader, the cleric Moktada al-Sadr, helped put Mr. Maliki in power, but pressure to crack down on the group has mounted as its killings in the capital have driven a wedge into efforts to keep the country together.

Although the announcement seemed timed to deflect growing scrutiny by an American administration that has grown increasingly frustrated with Mr. Maliki, American officers here offered some support for the government’s claims, saying that at least half a dozen senior militia leaders had been taken into custody in recent weeks.

[...]

In an interesting twist, the militia’s leadership has not visibly fought back against the crackdown. American commanders say that the arrests do not draw the howling objections they used to in 2004, because Mr. Sadr’s militia has splintered so deeply since then that the members they are arresting are more criminal than political and considered by Mr. Sadr to be disloyal renegades.

In that assessment, Mr. Sadr could even be using the government and the American military to purge his own ranks of undesirables.

Never, ever play three-card monte with these people.