Wrong Turn on Eavesdropping

Congress should kill both major bills on NSA surveillance and start over.

BEFORE WRAPPING up business and sending members home for the fall campaign, both houses of Congress are likely to take up measures to authorize the National Security Agency's program of warrantless surveillance. The two main bills under consideration would both be disasters; they should not pass in anything like their present form. Because the parameters of the program remain so murky, it is impossible for those who have not been briefed on its details to identify exactly what Congress should do. No matter what the contours of the program may be, however, the steps these bills contemplate are dangerous. Instead of modernizing and updating a law that has served well and may need adjustment, they would authorize broad executive powers of warrantless domestic surveillance.

The main bill in the Senate, by Judiciary Committee Chairman Arlen Specter (R-Pa.), was originally designed to place the NSA's program before the courts for review. Judicial review of this program could indeed be helpful, but Mr. Specter's bill, which yesterday seemed to be running into trouble in the Senate, would achieve it at an unacceptable price. It would effectively repeal the requirement in current law, known as the Foreign Intelligence Surveillance Act (FISA), that all national security surveillance conducted domestically take place under the act's terms. Instead, it would explicitly acknowledge that the president may have inherent constitutional authority to spy on Americans without court approval -- thereby giving the administration carte blanche to snoop on Americans however it likes. And it would also permit the administration to seek a warrant for an entire "electronic surveillance program" rather than individual warrants to spy on people against whom it has evidence. The cumulative impact of this bill would be to make FISA optional and give the administration a green light to spy.

In the House, a proposal by Heather A. Wilson (R-N.M.) has acquired an undeserved reputation for moderation. Under her bill, all aliens who are not permanent residents would become subject to warrantless surveillance for up to a year if they are "reasonably expected to transmit or receive foreign intelligence information" -- even if there is no suspicion of wrongdoing on their part. Even more troubling, the proposal would give the president the ability to conduct warrantless surveillance against anyone he suspects of contact with terrorists after a terrorist attack or, in the latest version, when he deems an attack imminent. Because the key terms in this section go undefined, these provisions could easily be read to permit broad warrantless surveillance domestically even following -- or in anticipation of -- attacks on U.S. troops in combat zones overseas.

Congress needs to step in and regulate the NSA's program; it almost certainly also needs to modernize the Foreign Intelligence Surveillance Act, which was passed before the advent of modern telecommunications and computer technologies. Members of both parties have advanced thoughtful proposals. The goal of any legislation should be to authorize what is necessary in the NSA's program while at the same time limiting it and ensuring appropriate judicial oversight. These bills would do almost the opposite.