Does it matter that Democrats took charge of the Senate this month?

George Bush seems to think so.

In a letter sent today to Senate Judiciary Committee leaders, Attorney General Alberto Gonzales writes that, “the president has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires.

“Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” explains the attorney general’s letter.

The FISA Court was created by Congress in 1978 with the specific intent that it would supervise electronic eavesdropping within the United States. But the Bush administration, which launched its spying program in 2001, had until today refused to obey the court’s authority.

When it was learned late in 2005 that Bush had repeatedly authorized the monitoring of the phone conversations and emails of Americans, the president and his lawyers claimed that the White House did not need to consult with FISA courts before engaging in such surveillance.

With Pennsylvania Republican Arlen Specter, a somewhat critical but cautious player, in charge of the Judiciary Committee, the administration showed no inclination to seek proper authorization.

But Specter lost his chairmanship when Democrats took charge of the Senate after the November 7 elections.

With Vermont Democrat Patrick Leahy, a critic of warrantless wiretapping, now in charge of the Senate Judiciary Committee, and with Wisconsin Democrat Russ Feingold, who proposed censuring the president for failing to obtain proper authorization for his surveillance program, now in charge of the Judiciary Committee’s Subcommittee on the Constitution, the White House has suddenly developed a newfound respect for the rule of law.

This is not the end of the story, however. The Congress still needs to investigate whether the warrantless wiretapping program was used to monitor not merely terrorist threats but domestic dissent.

While there is much to celebrate in the administration’s change of course, Feingold is right in his assessment. “For more than five years, the President has conducted an illegal program, including more than a year during which he publicly asserted that this violation of the law was absolutely essential to protecting the public from terrorists. I am pleased that the President has been forced to return to the law and that this program has been terminated,” the senator says.

But, Feingold adds, “I continue to have many questions about what the Foreign Intelligence Surveillance Court has decided and intend to scrutinize carefully how the Court has interpreted the FISA statute. In addition, while I welcome the decision to stop conducting surveillance without judicial approval, the President now needs to respond fully to legitimate congressional questions about the complete history of this now-terminated illegal program.”

If the Bush administration’s warrantless wiretapping targeted American citizens who were involved in legitimate and legal activities, Feingold’s censure resolution will remain a necessary option — along, perhaps, with the more stringent sanction of an article of impeachment from the House.

It ought not be forgotten that the second article of impeachment against Richard Nixon, as authorized by the House Judiciary Committee in 1974, was concerned with the former president’s “directing or authorizing [federal] agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office.”

Of course, the same article of impeachment declared that Nixon had acted “in disregard of the rule of law” and had “failed to take care that the laws were faithfully executed.” If those standards were applied today, the history of the warrantless wiretapping program over the past six years would provide more than enough justification for similar action against Bush.


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