Make No Law

Today the Senate Judiciary Committee will consider bills on warrantless wiretapping. None should move.

THE SENATE Judiciary Committee is scheduled today to mark up legislation dealing with the National Security Agency's program of warrantless domestic surveillance. What kind of bill it will report out is anyone's guess. Three different bills are floating around -- one by Chairman Arlen Specter (R-Pa.), one by Mike DeWine (R-Ohio) and one by Dianne Feinstein (D-Calif.) -- and they would do wildly different things. What the committee should do now is clear: nothing. Any legislation is premature, because most members of the committee still have no firm sense of what the NSA surveillance program consists of.

We sympathize with members eager to get the program under some legal control. But action, in advance of real understanding of the surveillance, risks authorizing too much or failing to address the issues that led the administration to act outside of the Foreign Intelligence Surveillance Act, which regulates domestic electronic surveillance. Mr. Specter's bill is a good example. He has rightly sought to conduct oversight of the program, an effort largely frustrated by the administration. And he has described his goal as getting the FISA court system, which normally approves requests for national security wiretaps, to rule on the program. Yet his bill would do a whole lot more. It would repeal the provision of FISA that makes it the exclusive legal means of conducting national security surveillance, thereby seemingly recognizing President Bush's assertion of power to spy on Americans on his own authority. It would also appear to allow the FISA court system to authorize whole surveillance programs, in addition to wiretaps of individuals -- though Mr. Specter insisted in an interview yesterday that it would permit review of only the one NSA program.

Mr. DeWine's bill is considerably narrower; it would authorize some warrantless surveillance but would not repeal FISA's insistence that all surveillance must be authorized by statute. It would impose important restrictions on the use and retention of information collected and would force the administration to seek a warrant as soon as possible. It also, however, would allow warrantless surveillance to continue in some instances with a certification to Congress -- not the FISA court -- of its necessity.

By contrast, Ms. Feinstein's bill, which Mr. Specter is also co-sponsoring, actually reaffirms FISA's exclusive authority and would prohibit the use of federal money for any program that does not comply with the law. It would relax certain FISA procedures to make compliance easier. Ms. Feinstein, who serves on the intelligence committee, has been briefed on the program, as has Mr. DeWine. Her bill warrants careful attention and study, but given that it materialized only yesterday, that hasn't yet been possible.

The goal of legislation should be to legitimize important surveillance by requiring judicial review, limiting the use of material collected to counterintelligence purposes and ensuring that irrelevant material is not retained. The best way for the Judiciary Committee to move toward this goal is to hold off on a markup and insist that it receive more information about the program -- so that it's not shooting in the dark.