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Congress Tackles Surveillance

Thursday, February 16, 2006

CONGRESS IS feeling its way gingerly as it contemplates the Bush administration's extralegal program of domestic surveillance. That's not surprising. The administration, which kept the program secret from all but eight members of Congress until recently, insists that any congressional inquiry could help the terrorists who are the ostensible targets of the surveillance. Moreover, given changes in technology, it may not be easy to write a law that both permits surveillance activities that make the country safer and protects civil liberties and congressional oversight. Nonetheless, those twin goals must be served, and the Republicans and Democrats looking for ways to do so are on the right track.

One essential prerequisite to finding a solution is to have enough information. The administration, after a period of resistance, gave House and Senate intelligence committees some information last week, but it's far from clear that legislators know enough to act responsibly -- or that they are willing to insist on getting the information that they need. What does the program entail and why is it not, as the administration contends, feasible to comply with the requirements of the Foreign Intelligence Surveillance Act? How many Americans have been subjected to surveillance? For how long? Has the program proved valuable, or has it inundated investigators with too many false leads? What agencies are privy to the information that is collected? What steps are taken to minimize dissemination of surveillance that doesn't bear fruit -- and to scrub the record of leads that prove to be blind alleys? What procedures are in place to make certain the intelligence is not abused?

We are not contemplating public hearings that would offer the administration's political opponents a platform for flagellating its failure to appropriately disclose the program. But a thorough scrubbing, by members and staff cleared for and versed in intelligence-gathering, is essential to achieving the truly critical goal: bringing the operation under a legal framework that includes sustained and rigorous outside oversight. To argue that an investigation is warranted under these circumstances is not to presuppose wrongdoing but simply to point out that Congress cannot effectively do its job in the dark.

While it's premature to consider what legislation might be appropriate, some proposals that have already been put forward strike us as heading in the right direction -- if not quite there yet. Sen. Arlen Specter (R-Pa.) wants the special court that oversees FISA to review the program and determine its constitutionality -- an odd role for an admittedly unusual court. Sen. Mike DeWine (R-Ohio) wants to exempt the program from FISA and merely have the administration regularly brief a small group of lawmakers; this strikes us as not nearly rigorous enough.

But they are right to be groping for legislative solutions. As much as the administration would prefer otherwise, it is not acceptable simply to have this program continue in the existing legal and regulatory vacuum.

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