The Bush Administration now is negotiating a resolution to this interbranch dispute, to be reflected in revised statutes. The Bush Administration need not concede the constitutional point in order to agree to abide by certain negotiated limitations on its power.

Likewise, the fact that Congress has disagreed with the President on the constitutional point, and that there is a great deal of mistrust of the President in the halls of Congress, does not mean that Congress is not prudent in its conclusion that a negotiated resolution of the situation is not a workable, optimal solution — especially when Congress has reason to believe that the next Administration may abide by the new statutes to an extent greater than it may abide by the existing statutes.

Negotiated solutions amidst hotly contested legal fights is nothing new — indeed, its commonplace in our profession. But such negotiated solutions can occur only when two sides are willing to come to the table and work out a imperfect solution that is sufficiently acceptable to both parties.

You seem to think that Congress holds all of the leverage in this negotiation. I’d suggest that you’re wrong, and that Congress has just as much an incentive to find middle ground on this issue.

Lately, Democratic presidential candidates have been debating how quickly they would race to the bargaining table to find middle ground with Hugo Chavez, Kim Jong Il, and others. I’d say that those same Democrats can and should be ready to negotiate with President Bush.

But it would NOT be the first change since 1978. FISA has been amended nine times, including via the PATRIOT Act and its reauthorization.

It is totally disingenuous and duplicitous for warrantless wiretapping apologists to describe FISA as “obsolete” or as a “Carter-era law” (which they do repeatedly). It is a “Bush-era law,” pure and simple.