President George W. Bush will not reauthorize the National Security Agency's (NSA) Terrorist Surveillance Program (TSP) through secret Executive Order, according to the U.S. Department of Justice (DOJ). Attorney General Alberto Gonzales announced in a Jan. 17 letter to lawmakers that DOJ will instead seek court orders from the Foreign Intelligence Surveillance Court (FISC), and that henceforth, the program will operate in compliance with the Foreign Intelligence Surveillance Act (FISA). While the announcement and the increased accountability are welcomed by many of the program's critics, many questions remain unanswered.

The discovery that President Bush authorized the NSA to spy, without warrants, on the international communications of U.S. citizens was reported by The New York Times in December 2005. The battle over authority and oversight that ensued between the Bush administration and Congress played out for much of 2006. Many members of Congress were outraged that the White house did not inform relevant congressional committees on intelligence and judiciary about the program. The Bush administration vigorously fought to keep details of the program secret and tried, without success, to pass legislation that would have retroactively legalized the spying program.

There are currently over thirty court cases challenging various aspects of NSA's TSP and data-mining program. It is unclear what the fate will be of the cases challenging the legality of the NSA program and whether this change in policy by the Bush administration will affect those cases. One court, the U.S. Court for the Eastern District of Michigan, has already found the surveillance program to be in violation of the First and Fourth Amendments and the separation of powers doctrine. The government has appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit, and based on the new FISC oversight policy, has already moved to dismiss the case, arguing that it is now moot. The current NSA cases may go forward despite the change in policy since the president still maintains that he has the right to wiretap without a court order.

It is also unclear what role Senate and House judiciary and intelligence committees in the Democratically-controlled Congress will play. In a Senate Judiciary Committee hearing shortly after the Justice Department announcement, Gonzales dodged questions concerning specifics of the program and the FISC decision. Of central concern is whether or not the FISC order granted broad authorization for the whole program or only particular wiretaps. Both the New York Times and the Washington Post have reported that the FISC orders are a hybrid between the two. If the former, the order and the program may still violate the Fourth Amendment, which requires particularized orders for surveillance. Gonzales rebuffed efforts by Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, to obtain the text of the decision issued by FISC. Similarly, Sen. Charles Schumer's (D-NY) efforts to discover specifics of the program’s operations and of the order's requirements met with little cooperation from Gonzales. These evasive tactics appear to indicate that while the administration has submitted the NSA surveillance program to FISC oversight, it is not prepared to accept congressional oversight as well.

Serious questions concerning the specifics of the NSA program and the FISC decision need to be answered in order to ensure proper oversight and accountability. Moreover, the president's claim to maintain the power to wiretap without a warrant should be scrutinized by the courts in the NSA cases. Without judicial resolution on the issue, the president could secretly resume warrantless wiretaps on American citizens. In fact, the warrantless wiretapping of American citizens could be occurring right now in a program outside of TSP.