Bush caves on warrantless wiretaps, hands program off to FISA court

We’re late posting about this and I know some of you must be ready to burst from frustrated ventage about how Bush doesn’t take terrorism seriously, we’re not fighting the enemy with all the tools at our disposal, etc etc. Go on. Let it out.

FindLaw has a photocopy of Gonzales’s letter to Leahy. The operative words are “speed and agility.” I’ve seen at least one lefty today scoff at his assertion that they’ve been considering this move since spring 2005, which is a good six months before the New York Times exposed the program. It’s not that unlikely: the Times first learned about it before the 2004 election and discussed it with people in the administration at the time. Gonzales and the White House counsel might have reasoned that the paper could go public with it at any time and it would behoove them to have some sort of proof onhand that they were considering bringing the program under the jurisdiction of FISA in case public reaction was overly negative.

Why, though, if they were considering such a move would they have defended their anti-FISA position so aggressively? Answer: why not? The left’s casus belli against Bush is that he’s tried to expand executive power on multiple fronts (interrogations, military tribunals), not just wiretapping. To concede on one could have weakened the others. Think Progress made that connection at the time of the Hamdan decision, in fact, arguing that the Supreme Court’s narrow reading of the 9/11 war resolution not only rendered the military tribunals unconstitutional but undermined the chief source of legal authority for the wiretapping program.

But why cave now? Granted, the program was ruled unconstitutional by a federal district judge in August, but in an opinion the general crappiness of which was widely remarked upon at the time. Why not press the issue if you’re Bush and take your chances with the Supremes? If they upheld the program it would fall to Congress to override it legislatively, and how would they manage that knowing that they’d need 67 votes to beat Bush’s veto? These are people who can’t muster the balls to do better than a symbolic nonbinding resolution on matters where 65% of the country is behind them.

Well, except for Hillary. But then, we always knew she had balls.