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Gonzales' Trojan HorseFISA-approved surveillance may not be a civil-liberties coup.

By Patrick Radden KeefePosted Friday, Jan. 19, 2007, at 2:22 PM ET

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Patrick Radden Keefe assessed Arlen Specter's proposed NSA legislation. Emily Bazelon covered Gonzales' FISA testimony before Congress last winter. Fred Kaplan suggested ways to fix the data-mining system. Dahlia Lithwick was skeptical of the FISA court.

When Sen. Charles Schumer, D-N.Y., asked Gonzales point-blank during yesterday's hearing whether the order from the FISA judge was "a case-by-case basis order," Gonzales replied, as he did each time this question was posed, "I am not at liberty to talk about those specifics."

If it's all right with the FISA court, it should be all right with you guys, Gonzales reiterated throughout the testimony. But then, the Jan. 10 orders had not come from the entire panel, or even from the FISA court's presiding judge, Colleen Kollar-Kotelly, but from one particular judge who happened to be on duty that day. These orders appear to be unappealable, and no one outside the FISA court and the administration knows what they say. The senators wanted to see the orders themselves, but Gonzales objected that they contain classified information. "Are you saying that you might object to the court giving us decisions that you've publicly announced?" Patrick Leahy, D-Vt., asked angrily. "Are we a little Alice in Wonderland here?"

Basically, Gonzales replied.

In this information vacuum, some have speculated that the judge's orders simply amount to a blanket authorization of the old wiretapping program—a sort of FISA-court-sanctioned license to violate the FISA. Rep. Heather A. Wilson, R-N.M., who sits on the House intelligence committee, said that the orders constituted a "programmatic approval" and lacked the FISA's safeguards for civil liberties. Another official told the Washington Post that "the change was 'programmatic,' rather than based on warrants targeting particular cases." A programmatic authorization would hardly signal a retreat by the administration. In fact, blanket FISA-court authorization was a feature in Arlen Specter's NSA bill, which was also erroneously marketed as a compromise.

But there's also some indication that the orders aren't a blanket authorization. "These orders are not some sort of advisory opinion ruling on the program as a whole," one of the Justice Department officials said in the background briefing, and Specter says he has been briefed by administration lawyers and that the new arrangement is based on individualized warrants.

The truth may lie somewhere in between. The Post reports that four other officials familiar with the program said it is "a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people." Law professor and blogger Orin Kerr suggested that the answer may be "anticipatory warrants." These warrants can be approved by a judge in advance and stipulate a series of circumstances that will trigger the warrant into action. Kerr speculates that in arriving at their "innovative" theory, DOJ lawyers may have drawn on a case that was decided last March, United States v. Grubbs, in which the Supreme Court approved the use of anticipatory warrants.

What is clear is that until the administration furnishes more detail about the new arrangement, any suggestion that the orders represent a compromise or retreat is premature. Judge Kollar-Kotelly wrote a letter to Sens. Leahy and Specter saying that she has "no objection to [the orders] being made available" to lawmakers, and Gonzales may have sparked enough rancor on both sides of the aisle that Congress will press the issue and demand to see them.

But perhaps the most telling—and worrying—aspect of the hearings yesterday was Gonzales' insistence that while the administration is now submitting the surveillance program to the FISA system, he does not believe that it was ever illegal to go around FISA in the first place. As Sen. Schumer was quick to point out, the fact that the White House is billing its new friendliness to the FISA as a courtesy, and not a legal obligation, means there's no reason to believe the administration will feel bound by any new set of procedures, however secretive or accommodating. "Just as you instituted this program," Schumer said, "you could just go back to it if you get a decision you don't like."