The Liberty Papers

Some of you may remember this story, from mid-January (covered by Doug here). The tone of the story is that Bush backed down to pressure from Democrats and the American public, and realized that his program might be over the line.

The Bush administration said yesterday that it has agreed to disband a controversial warrantless surveillance program run by the National Security Agency, replacing it with a new effort that will be overseen by the secret court that governs clandestine spying in the United States.

The change — revealed by Attorney General Alberto R. Gonzales in a letter to the leaders of the Senate Judiciary Committee — marks an abrupt reversal by the administration, which for more than a year has aggressively defended the legality of the NSA surveillance program and disputed court authority to oversee it.

…

Administration officials suggested that the move was aimed in part at quelling persistent objections to the NSA spying by Democrats who now control Congress and that it is intended to slow or even derail challenges making their way through the federal courts. The Justice Department immediately filed a notice with the U.S. Court of Appeals for the 6th Circuit yesterday informing the panel of the new program and promising to file papers “addressing the implications of this development” on pending litigation.

I didn’t quite buy it then… Bush is a “decider” and once he’s made a decision, it rarely changes. So for him to give up a power that he believes he has seemed a bit strange.

And today we find out why, as he backed down not out of respect for the rule of law or the Constitution, but because a judge forced his hand:

A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration’s wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president’s spying powers.

House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court’s decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.

The decision was both a political and practical blow to the administration, which had long held that all of the National Security Agency’s enhanced surveillance efforts since 2001 were legal. The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court, and after it finally did so in January the court ruled that the administration’s legal judgment was at least partly wrong.

Now, because of the secretive nature, a lot of the timeline is missing here. It is unclear whether the judge’s final ruling came before or after the Administration changed their tune, but portions of the letter Gonzales released on Jan 17 did refer to orders by a judge handed down on Jan 10.

Either way, it’s clear that this was not the administration backing down from wrongdoing, this was the administration being forced into compliance.

Which, frankly, is the only way to get this administration to do anything it doesn’t want to do.