Authorizing Surveillance

Thursday, March 9, 2006

IN THE PAST week both congressional intelligence committees have taken modest steps toward oversight of the National Security Agency's mysterious program of warrantless wiretapping. First, the House intelligence committee agreed to conduct a comprehensive review of the implementation of the Foreign Intelligence Surveillance Act (FISA) -- the law that governs national security wiretapping and searches within the United States -- and to push the Bush administration to give a substantial briefing on the NSA program to a subcommittee. Then, this week, the Senate intelligence committee -- having rejected Democratic requests for a full-blown oversight investigation -- set up a subcommittee of seven members to look into the matter. Previously, only individual members have received full briefings on the program, which circumvents FISA's requirement of a warrant from a special court.

In the Senate's case, the committee action coincided with a proposal by several moderate Republicans to authorize aspects of the NSA program and impose modest restrictions. The bill, which is being advanced by Sen. Mike DeWine (R-Ohio), would allow warrantless surveillance for 45 days -- and in some instances much longer -- when one party to a communication is outside the United States and one party is linked to terrorism. The bill has positive and negative elements. It contains important restrictions on the use and retention of information, and it would require the administration to get a warrant as soon as the standards for one can be met. But it would also allow surveillance to continue without a warrant if the administration certifies its necessity to a congressional subcommittee. Whatever its merits, the legislation seems premature. Any bill should flow out of the examination of the program the committees are only now undertaking, not from guesswork about what is going on and what rules should apply.

Two key inquiries ought to guide any new legislation: how FISA is working and what precisely the administration is doing outside of its strictures. The administration has said that the surveillance law is too cumbersome for certain essential national security surveillance. If this is true, the law needs to be updated. But Congress cannot reasonably authorize or limit the NSA's program without knowing what sort of surveillance it encompasses and how it works. How big is the program, and how many times has the NSA snooped on Americans using it? What are the technological advances that have rendered FISA obsolete and for what categories of surveillance? To what extent is data-mining part of the new program? Are the targets all abroad, and Americans' communications intercepted only incidentally, or are some of the targets domestic? Is the physical intelligence collection being done domestically or overseas? These questions may sound esoteric, but they are essential to assessing the legality of what the administration has done and how and whether the law should be updated. Much of this inquiry cannot be conducted in public. But it can and must happen -- and briefing members fully is the place to start.

The goal should be to modernize the compromise between national security and liberty that FISA represented in the 1970s: to legitimize essential surveillance by law, require judicial review when the targets are U.S. citizens or residents, limit the use of this material to counterintelligence purposes, and ensure that irrelevant material is not retained.

Crafting and maintaining compromise on this issue has always been bipartisan. It would be tragic and dangerous if it became a political football now -- either as a campaign issue for President Bush or a club with which Democrats can pound him. Consensus should be possible if the administration is willing to engage seriously with a Congress interested in rigorous oversight.

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