January 17, 2007: Bush Administration Reaches Deal to Continue Wiretapping Program under Judge’s Authority

Attorney General Alberto Gonzales sends a letter to the Senate Judiciary Committee informing it that the lawsuit against the administration’s warrantless wiretapping program (see August 17, 2006) is moot—the National Security Agency will now operate under the aegis of the Foreign Intelligence Surveillance Court (FISC) in its wiretaps. One of the FISC judges, Gonzales writes, has issued an “innovative” and “complex” order that allows the NSA to continue doing what it had been doing with the overall approval of the court, or at least the approval of the single FISC judge. Gonzales does not go into detail about the judge’s ruling, but the administration intensifies its attack on the lawsuit, asking an appeals court to set the previous ruling aside in light of the new FISC protocol, and even to erase the ruling from judicial history as a matter of “public interest.” The appeals court votes 2-1 to set aside the previous ruling; the majority opinion finds that the state secrets privilege prevents the courts from learning whether the plaintiffs in the case had the standing to sue. [Savage, 2007, pp. 207]