Scott Lemieux (surprise, surprise) is not a fan of Benjamin Wittes's article up on TNR Online today. Nor is Matt Yglesias. The basic argument they make is that Wittes is being naive-that the Bush administration will simply use the broad language of the new wiretapping law to justify anything and everything it wants to do, rather than attempt to apply it in a fair-minded fashion.
Given the administration's fondness for untrammeled executive power, their concern is certainly justified. In fact, Wittes himself acknowledged as much in a TNR Online piece from two weeks ago. There does seem to be some tension between Wittes's earlier reluctance to support the FISA revision and his current (tepid) endorsement of the bill.
In Wittes's defense, though, he's at least grappling with the real conundrum here. On the one hand, just about everyone seems to agree the government needs an updated version of FISA to conduct critical surveillance operations. On the other hand, the current administration has proven itself unworthy of being trusted to act in good faith in discharging the power it claims it needs. The solution Lemieux and Yglesias propose-for Congress simply to have refused to give the administration what it wanted-is a tempting one. But the threat isn't any less real just because the Bush administration can't be trusted to combat it responsibly. I'm not entirely convinced by Wittes's claim that the bill Congress passed was a sound one, but I also can't help but feel that Yglesias and Lemieux are being a bit cavalier in their dismissal of the need for expanded surveillance powers in the first place. There's probably no good way out of this dilemma (so perhaps a law with a strict sunset provision isn't such a terrible place to start), but it would be comforting to at least see a bit more hand-wringing and equivocation from Yglesias and Lemieux before condemning Wittes's piece.