[IMPORTANT UPDATE: In light of the latest news, I no longer think this is happening. See my latest post above.] I'm not entirely sure I know what to make of Attorney General Gonzales's letter today about the NSA surveillance program, but I wonder if I'm quirky in reading it possibly to mean that DOJ found a judge who was willing to approve the entire TSP program under FISA. Here's what the letter says:

a judge of the Foreign Intelligence Surveillance court 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 or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC].

The letter also says that as a result of this development, the President no longer needs to and will not reauthorize the Terrorist Surveillance Program.

  The Washington Post adds:

  In a background briefing with reporters, Justice officials declined to provide details about how the new program will work — including whether the surveillance court has issued a blanket order covering all similar cases or whether it will issue individual orders on a case-by-case basis. Authorities also refused to say how many court orders are involved.
  The officials said the new approach will offer the same benefits of the NSA program, along with the advantage of judicial oversight.
  "There is no compromise to national security," one of the Justice officials said. "The objectives of the program haven't changed, and the capabilities of the intelligence agency to operate such a program haven't changed as a result of these orders."

  If this does involve a blanket order approving the entire program, it would seem to be a very clever move by DOJ. It would achieve four things, as I see it. First, it would make the TSP program very difficult to challenge. I gather no one would have standing to appeal the FISC order to the FISA Court of Review; even if the FISC order is unlawful, it's unclear as a procedural matter how it could be challenged. Second, it might moot the pending NSA litigation, or at least render any opinion in that case of very limited consequence. Third, it puts the Administration in the position of having obtained a court order, so that even if the order is unlawful it's "the judge's decision" rather than the Executive's. And fourth, it might help persuade the press to focus elsewhere; the press would be sure to present this as a concession to the Administration's critics (as the N.Y. Times did today), and the press is likely to be much less interested after they think the Administration has backed down.

  Of course, whether this is true depends on whether the Administration obtained some kind of blanket order or plans to get orders on a case-by-case basis. And it's unclear when or if we'll know which occurred.

  UPDATE: Some readers suggest that the language that "the Terrorist Surveillance Program will now be conducted subject to the approval of the [FISC]" suggests that there will be case-by-case approval. I don't think that's right. FISA orders do not run indefinitely: FISA orders can be good for up to one year, and must be reapproved after a year. As a a result, the statement that the program will now be "subject to approval" by the FISA Court might just mean that in one year DOJ will go back to the same judge and get him to issue the order again.