There Ought to Be a Law

Monday, February 6, 2006

THE SENATE Judiciary Committee, which has summoned Attorney General Alberto R. Gonzales to testify today about the administration's warrantless wiretapping, is likely to focus on questions of its legality. Those are crucial. But so is the question of whether it's possible to rework the Foreign Intelligence Surveillance Act to accommodate the program. In other words, is there a way to have this intelligence, to the extent that it is useful, and outside oversight, too? Unfortunately, President Bush has peremptorily dismissed suggestions that the law be rewritten, asserting that doing so would risk revealing secret capabilities.

Without knowing the contours of the program, it's difficult to assess that risk. But al Qaeda certainly is aware that U.S. intelligence agencies monitor various forms of communications. Given that, why does it make sense to decide -- even before trying -- that there's no way to update the law without tipping off terrorists?

The ranking Democrat on the House intelligence committee, Rep. Jane Harman (Calif.), said in a letter to Mr. Bush last week that the surveillance could be conducted even under existing FISA procedures, especially since the law was changed after the attacks of Sept. 11, 2001, to provide more flexibility. "I am one of the few in Congress who has been briefed on the program, and I am not clear why FISA as presently drafted cannot cover the entire program," Ms. Harman wrote. "If the modifications made by the Patriot Act are still inadequate, why didn't the Administration propose additional changes?"

Mr. Gonzales said in December that the administration "had discussions with members of Congress . . . about whether or not we could get an amendment to FISA, and we were advised that . . . was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program." But lawmakers are routinely entrusted with highly classified information. If the administration is arguing that the law can't be rewritten with enough specificity without also revealing its details -- well, why not at least get behind closed doors with lawmakers and try?

The administration's answer seems to be: Why bother? But there are two good reasons to bother. First, outside oversight -- the kind of careful, reliable review that the FISA court has provided in other cases -- is critical. The administration assures the public that it has put ample safeguards in place. But history shows that, without outside oversight, surveillance tends to fall prey to sloppiness and insensitivity to civil liberties. Second, as much as this administration resists any incursion on its autonomy, a congressionally sanctioned, judicially reviewed program of warrantless surveillance would enjoy far more public confidence. Working to fix the law instead of evading it would put the administration in a stronger position, not a weaker one.

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