The NY Times is reporting this morning that Senator Pat Roberts, chairman of the Senate Intelligence Committee, wants to reach some sort of compromise with the White House regarding the illegal, extra-constitutional electronic spying of Americans that has continued non-stop since Mr Bush ordered the NSA to begin such surveillance in the aftermath of the Bush malAdministration’s first disastrous failure: 9/11.

While Senator Mike DeWine is hard at work preparing to put his name at the top of a new bill Inquisitor General Abu Gonzalez is writing to retroactively authorize the electronic surveillance which is illegal under the FISA stature, Senator Roberts was detailed to throw a little more sand into the air.

The chairman of the Senate Intelligence Committee said Friday that he wanted the Bush administration's domestic eavesdropping program brought under the authority of a special intelligence court, a move President Bush has argued is not necessary. The chairman, Senator Pat Roberts, Republican of Kansas, said he had some concerns that the court could not issue warrants quickly enough to keep up with the needs of the eavesdropping program. But he said he would like to see those details worked out.

It’s unusual that they’re still beating the urgency gong, since it’s been well-established that the FISA court has functioned institutionally almost as co-operatively as the good puppy press of the MSM. If memory serves, they’ve denied 3 warrant requests in the last 6 years, and slightly modified 4 others in the last 8 years.

"I think it should come before the FISA court, but I don't know how it works," Mr. Roberts said. "You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit. So we have to solve that problem."

Stupendous claims to the contrary, what’s basically required is an affidavit of submission signed by a Deputy or Assistant Attorney General indicating that there is a strong belief that ( Fill in the name) of (Fill in the address, if known) is believed to represent a threat to the national security of the United States insofar as (he/she/it/they) are believed to be in contact with (Fill in the name) who has been designated as a threat to the national security of the United States. The DAG or AAG then signs his name on the bottom of the page. Corroborating affidavits from FBI, CIA, and/or NSA are then attached. I have to admit I’m not quite sure whether the form has an oath enactment printed on it, but – what the heck – this is national security, right? Everyone knows a DAG or AAG of the Bush Department of Justice would never lie.

In just about every case: rubber stamp. I’m not claiming the FISA court judges are tools; they do in fact examine what circumstances are presented to them, and they may well have been quite judiciously lenient heretofore. The stats do speak for themselves.

Then it became public knowledge that not only were we surveilling bad guys overseas, but we were observing them contact people inside the US, so naturally, those contacted also had to be monitored. And therein the problem since the FISA law covered external surveillance. So Mr Bush just instructed the NSA to open up the taps on American communications. We call all of this “wiretap” but that’s not quite accurate, since they’re monitoring electronic communication: telephone, computer and (undoubtedly) cell phones.

The question that should next arise, is : just who is being monitored inside the US? Is it just people who have contact with known al Quaeda entities? Is it just people who have overseas contacts? Are these people monitored when they have contact with other people inside the US? And once your “name” comes up on the “list” by being contacted by someone else are you then scrutinized at all times?

This sort of contact tree becomes an administrator’s nightmare: there are limited resources for monitoring and you just can’t successfully listen in to everyone, so you try to maximize your resource expenditure, and monitor your most likely targets.

Mass surveillance can work against the monitoring agency because they will lose the wheat in the chaff.

Those of us who have watched the Bush malAdministration closely over the last 5 years have formed a rather cynical view that the political opportunists within the government have seized upon this program to monitor those they consider the REAL threat: political opponents, such as Democratic Congressmen, journalists and public dissenters. Let’s face it: this program is a ‘gimme’ for them. And this sort of spying is completely illegal under the FISA statutes.

White House officials favor a proposal offered by another Republican senator, Mike DeWine of Ohio, whose bill would exempt the eavesdropping from the intelligence court. Mr. DeWine wants small subcommittees to oversee the wiretapping, but Mr. Roberts said he would like the full House and Senate Intelligence Committees to have regular briefings.

This would be the bill currently being prepared by the Inquisitor General. Senator DeWine has been threatened by a strong challenge for his seat from Sherrod Brown and Paul Hackett, who was neatly excised from the race this week by Democratic Party leaders. So DeWine was thrilled when offered the opportunity to write his name on the top of the bill, thereby being guaranteed a strong push by the White House in his upcoming race for re-election.

It’s fascinating to note that the White House has been insisting that Mr Bush has the authority under the “Unitary Executive” theory to do anything he feels like as long as he claims its for national security. The spying on Americans, whether true security threats or merely political opponents is illegal under the FISA law and the Constitution. Mr Gonzalez’s new law will retroactively permit what Mr Bush has been doing for five years.

“No bill of attainder or ex post facto Law shall be passed.” US Constitution, Art 1, Sec 9

“No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law…” US Constitution, Art 1, Sec 10.