A March 8 New York Times article by staff writers David D. Kirkpatrick and Scott Shane reported that the recent agreement between the White House and Republican members of the Senate Intelligence Committee concerning the Bush administration's warrantless domestic surveillance program “would reinforce the authority of the Foreign Intelligence Surveillance Court,” which is often referred to as the FISA court. But far from reinforcing what many say should be the FISA court's authority over the program, the reported agreement, if it is introduced as legislation, would codify the program's status outside the reach of the court.

The Foreign Intelligence Surveillance Act (FISA), as passed by Congress in 1978, requires a warrant from the FISA court to conduct domestic surveillance for foreign intelligence purposes and allows warrantless surveillance for up to 72 hours under exigent circumstances. Shortly after the September 11, 2001, terrorist attacks, President Bush authorized the National Security Agency (NSA) to bypass the court, and the agency has since reportedly intercepted the communications of U.S. residents in apparent violation of the law. President Bush claims that he derives authority to circumvent FISA from two sources: the Constitution and the Authorization for Use of Military Force (AUMF) passed by Congress in 2001. Since the program's public disclosure, Democratic lawmakers -- along with numerous Republicans -- have contested this legal argument.

On March 7, Republican members of the Senate Intelligence Committee announced that they had reached an agreement with the White House on legislation that would allow the warrantless domestic surveillance program to continue under the law. As detailed by Sen. Mike DeWine (R-OH) at a press conference that day, the proposed measure would allow the NSA to conduct warrantless eavesdropping for up to 45 days without a FISA warrant. If the administration seeks to conduct this surveillance for a longer period, they would be able to either request a warrant from the FISA court or go before a newly formed, seven-member Senate subcommittee for approval. From DeWine's press conference:

DeWINE: It provides that in an international call involving a designated terrorist organization, that there can be surveillance without a warrant. It provides that this program must be reviewed every 45 days. That after the 45-day period of time the executive branch must really do one of three things. The executive branch, if it has enough information to go for a FISA warrant, they must go for the FISA warrant. They can stop the surveillance. Or, the third thing that they can do is, if they do not want to do one of those two things, they must go to the United States Congress and explain why it is in the national security interest to continue that surveillance and why they cannot go to the FISA court to get a warrant.

What this does is it provides for a case-by-case examination and oversight by the United States Congress, through its Intelligence Committee, of what the executive branch is doing.

The second part of this bill is, we provide for very vigorous oversight through the Intelligence Committee. We set up a statutory authority to do this through the subcommittee of both the Senate committee and the House committee. We spell out in detail what that oversight will be. And really will bring it into the normal oversight of the Senate Intelligence Committee.

[...]

We think we have set up a mechanism that provides vigorous oversight through this committee, very detailed oversight, as I have already outlined. And we think also it involves the FISA court, it does involve the FISA court.

DeWine stated that, following the 45-day period, the administration must seek approval from the FISA court if it “has enough information to go for a FISA warrant.” In this context, “enough information” clearly means enough evidence to satisfy FISA's probable cause standard. DeWine further stated that if “they cannot go to the FISA court to get a warrant” -- presumably because they cannot meet the probable cause standard -- they can alternatively explain to the subcommittee why the surveillance is nonetheless “in the national security interest.” The Times article made no effort to explain how a law requiring that the administration go to the FISA court whenever possible -- if it has sufficient evidence to obtain a warrant -- but allowing the administration instead to go to the subcommittee for further authorization if it cannot meet FISA's standard of proof “would reinforce” the authority of the FISA court, as Kirkpatrick and Shane reported that it would:

The agreement would reinforce the authority of the Foreign Intelligence Surveillance Court, which was created in 1978 to issue special warrants for spying but was sidestepped by the administration. The measure would require the administration to seek a warrant from the court whenever possible.

If the administration elects not to do so after 45 days, the attorney general must certify that the surveillance is necessary to protect the country and explain to the subcommittee why the administration has not sought a warrant. The attorney general would be required to give an update to the subcommittee every 45 days.

Blogger and attorney Glenn Greenwald had a very different take on whether the agreement strengthens the FISA court: “What the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities,” Greenwald wrote in a March 8 post.

In their March 9 Times article on the agreement, Kirpatrick and Shane cited legal experts' complaints that the resulting legislation would “give legislative sanction” for long-term unwarranted domestic surveillance. They further noted that the 72 hours of warrantless surveillance allowed under FISA -- a restriction that the Bush administration apparently decided did not apply to the NSA program -- would be extended to 45 days and possibly longer under the proposed GOP measure:

In an emergency, the existing FISA statute permits the government to eavesdrop for 72 hours before getting a warrant, and for 15 days after a declaration of war. The Republican proposal would permit eavesdropping with no warrant for 45-day periods, with no limit on how many times they could be renewed.

But Kirpatrick and Shane did not note, much less correct or offer no further explanation for, their previous assertion that the proposed legislation “would reinforce the authority” of the FISA court.