It certainly sounds like good news that the administration has finally deigned to let FISA courts play their legally mandated oversight role, putting an end to the extralegal enterprise euphemistically (and question-beggingly) dubbed the Terrorist Surveillance Program. But as Orin Kerr notes there’s a big honking ambiguity in this new oversight: Justice department officials won’t clarify whether that means FISA will be ordering the familiar sort of case-by-case warrant based on individualized suspicion or some kind of blanket approval of the old TSP as a whole. Because if it’s the latter, that’s not oversight. That’s writ of assistance. It’s hard to read this transcript and not come away with that conclusion, and equally hard for me to fathom how such a general clarification could somehow be perilous to national security. The only reason I hesitate is that it seems odd that a FISA judge would sign off on so dramatic a departure from the normal rules of the game.

Quite a bit about this doesn’t smell right, actually. Suppose we are talking about real, case-by-case oversight. We were supposed to believe that the ordinary FISA process was too slow and cumbersome to allow intelligence agencies to hunt terrorists effectively, and for some reason it wasn’t possible to remedy this by normal legislative means—say, by asking Congress to extend the 72-hour window within which agencies can conduct emergency taps before securing retroactive approval. As Mark Moller notes, that seems still more dubious in light of this new announcement: How much can actually have changed in the process without any legislative action? Why would it take five years to make those changes, requiring the creation of a separate program in the interim?

In short, there seem to be two real options here. Either the administration has effectively conceded that their claims about problems with the FISA courts were bollocks from the outset, and that they just preferred not to be burdened with any kind of judicial scrutiny, or they’ve somehow gotten a FISA judge to participate in creating the appearance of oversight while allowing the old program to continue under new cover without any substantive changes or additional checks. Or, God help us, both.

Update: Well, the Bush Fan Club at Power Line appears to agree, though they think this is just dandy:

In any event, the administration seems to have found a solution that allows the Terrorist Surveillance Program to continue in all but name, while defusing the criticisms of the program–which were, in my opinion, almost entirely unjustified.