As I drove home from UWM's win over UIC (one of the few bright spots in a rebuilding season), I heard Mark Levin (and Andrew McCarthy)express dismay that the Bush administration had "pulled the plug" on the Terrorist Surveillance Program and will now go to the FISA court and try to prove probable cause before listening to international communications in which one of the communicants is believed to be a member of Al Qaeda or associated terrorist organizations.
At issue is a letter from Attorney General Gonzales to Senators Leahy and Specter in their capacities as Chair and ranking minority member, respectively, of the Senate Judiciary Committee. General Gonzales does say that "any electronic surveillance that was occurring as part of the [TSP]will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court."
But the key may be why that is so. Gonzales begins the letter by saying that, on January 10, an FISC judge issued orders authorizing the government to "target for collection international communications into or out of the United States where there is probable cause to believe" that one of the communicants is a member of Al Qaeda or a related terror organizationed
Does this mean that the government must go to the FISC and get probable cause for each communication (or each communication involving a particular communicant)? That seems unclear, but I think that it may not. The letter says that the orders are innovative and complex and took a long time for the government to develop. There would be nothing particularly innovative and complex about case by case determinations of probable cause for the interception of communications between identified parties. Courts do that all the time.
Gonzales says that any court authorization would have to offer the same speed and agility as the TSP and that these orders do. Therefore, he concludes "under these circumstances," the President has decided not to reauthorize the TSP.
Law prof Orin Kerr blogging at the Volokh Conspiracy reads the letter to say that DOJ has persuaded a judge to authorize the entire TSP and, while I suspect that there are things in the orders that were not in the original program, my guess is that he is right.