JURIST Contributing Editor Peter Shane of Moritz College of Law, Ohio State University, says that while the timing of the White House climbdown on court supervision of its warrantless surveillance activities may be explained by Democratic dominance of the new Congress, questions remain as to why the administration previously believed the FISA process inadequate, and whether Congress will now press its political advantage to rein in other instances of executive lawlessness…

James Bamford called his 1983 book about the National Security Agency “The Puzzle Palace.” Somebody should use the same name for a book about the 2007 White House.

Attorney General Alberto Gonzales disclosed this week to the Senate Judiciary Committee that the President will not reauthorize the National Security Agency’s so-called Terrorist Surveillance Program (TSP), the program of warrantless electronic surveillance created by secret presidential order in early 2002. The Bush Administration has insisted that the TSP targeted only international communications to or from the United States when the Government had reason to believe one party to the conversation was affiliated with al Qaeda. It likewise maintained that the Foreign Intelligence Surveillance Act process for securing judicial warrants to authorize such surveillance was inadequate to support the kind of program necessary in a post-September 11 world.

That, of course, poses Puzzle #1. FISA permits the issuance of a warrant whenever the Attorney General certifies that the purpose of the surveillance in question is the acquisition of foreign intelligence information. In any case where the Government reasonably believes one party to a telephone conversation is affiliated with al Qaeda, such a certification would seem to be the proverbial “no-brainer.” It might be that the Government would want to initiate surveillance more quickly than a completed application process would allow, but FISA explicitly anticipates that problem. It allows the Attorney General to pursue surveillance without a warrant in emergency circumstances, so long as an application is forthcoming within 72 hours. The process would seem tailor-made for authorizing wiretaps of the kind the Administration claimed to be pursuing. So why wasn’t FISA adequate?

This question provokes Puzzle #2: How was the TSP determining that at least one party to each wiretapped phone call was affiliated with al Qaeda? One obvious possibility is that the NSA was actually using computers to sift through data about thousands of telephone communications — things like call length, points of origin and reception, and so on — as well as word sampling from the conversations themselves, and then using these data to determine if a phone call might be al Qaeda-related. If the NSA were sampling the content of the calls, then this would mean that the Administration was lying — it was dipping into phone calls, without a warrant, even before some basis existed to suspect that a party to the call was affiliated with terrorists.

If something like this was happening, then we would now face Puzzle #3: Does the Administration think that the Foreign Intelligence Surveillance Court can authorize a program of data mining? The Foreign Intelligence Surveillance Court only has authority to decide matters over which Congress has vested jurisdiction in the court through FISA. With regard to electronic surveillance, warrants may issue only upon an application that includes “the identity, if known, or a description of the specific target of the electronic surveillance.” The reference to a “specific target” would seem to foreclose the possibility that the FISA court could sign off on any broad program of data mining.

But maybe this is just overheated over-thinking. The White House explained the President’s change of heart on the basis of new rules issued by the Foreign Intelligence Surveillance Court that have answered what Press Secretary Tony Snow called “questions we have had in the past about speed and agility.” This, however, merely returns us to Puzzle #1: How much faster than “immediately” did the Attorney General need to go?

What is not a puzzle is the timing of this change — on the eve of the first Senate Judiciary Committee oversight hearing in a Congress newly led by the Democrats. The White House surely hopes that its change of course will make it politically unpalatable for the Democrats to keep asking whether the TSP, in its 2002-2007 form, was a violation of law, involving both private telecommunications providers and government officials in serious felonies. And that’s today’s final puzzle: Will Congress muster the necessary backbone to investigate past Administration lawlessness, even as it keeps its focus on the future? The American people deserve answers to these questions, and only a Congress committed to the faithful execution of its institutional responsibilities can elicit them. Nothing puzzling about that.

Peter M. Shane is the Joseph S. Platt – Porter, Wright, Morris & Arthur Professor of Law at Ohio State’s Moritz College of Law.

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