A Start on NSA Oversight

Monday, April 10, 2006

IT HAS BEEN more than three months since the National Security Agency's super-secret warrantless surveillance program came to light. In that time, critics have confidently denounced it as illegal. The Bush administration and its defenders have brandished a less-than-compelling legal theory to justify it. And members of Congress have advanced a variety of legislative proposals to reform or authorize it. Missing from this conversation has been any firm sense of what exactly the program is. Briefings on it had been limited to only a few key members of each house of Congress, and these members were sworn to silence.

In the past few weeks, however, the intelligence committees of both houses have begun what appears to be serious if imperfect oversight. Only 11 members of the House committee and six members of the Senate have access. Yet that is a dramatic improvement over the previous state of affairs. What's more, the briefings appear to be comprehensive. Members of both houses have visited the NSA, and Rep. Heather A. Wilson (R-N.M.) described the agency in an interview as "forthcoming." Senate Democrats do not appear frustrated by lack of information. And while House Democrats continue to complain bitterly about the program's legality and the limitations on the number of committee members briefed, they are not complaining that details of the program are being withheld. Rep. Jane Harman, the panel's ranking Democrat, publicly described the briefings as "very complete" and "in great detail about how the program operates."

This is the essential starting point for a serious response from Congress. It's impossible to assess whether the program is legal or lawless, important or abusive without a comprehensive understanding of what it is. How many Americans has the NSA tapped under it? When is it used instead of the Foreign Intelligence Surveillance Act (FISA), the normal legal means by which the government spies on Americans? Is it used to target Americans or only to target people abroad? Last week Attorney General Alberto R. Gonzales once again intimated that the NSA program might not be the government's only domestic snooping outside of FISA. Members receiving these briefings need to explore why he is being so cagey and whether this program might represent the tip of a still-unseen iceberg.

The goal should be for a bipartisan group of senators and representatives, literate in the program's details, to agree about whether it is legal and necessary -- and what to do about it. Surveillance essential to national security needs to be legitimized by law. But judicial review is essential when the targets are U.S. citizens or residents, as well as assurances that the uses of material collected will be limited and irrelevant information not retained.

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