Stop the Stampede

Thursday, August 2, 2007

THE WEEK before a long congressional recess is a time when a lot of important legislative work finally gets done; it's also a time when a lot of big legislative mistakes get made. That is the danger now, as nervous congressional Democrats come under intense pressure from the Bush administration to ease the rules for terrorist surveillance. Those Democrats should resist the administration's demands for a hasty rewrite of a law as complicated as the Foreign Intelligence Surveillance Act; they should certainly not accede to the administration's proposal to vest broad new power in -- of all people -- the attorney general to authorize warrantless surveillance, free of normal court supervision.

As far as can be determined from the fuzzy information publicly available, the situation is something like this: In January, the administration agreed to put its Terrorist Surveillance Program under the supervision of the secret court that authorizes wiretaps under FISA -- rather than operating without warrants, as it had previously. Now, the administration is laboring under a backlog of surveillance requests -- think of it as the intelligence version of the problem with passport applications. Citing the FISA backlog, the administration is pressing to rewrite the FISA statute so as to remove from its rules -- warrant requirements and other protections -- the interception of communications from those outside the United States. The exemption would apply even if the interception itself were done within the United States and, more important, even if it picked up communications with U.S. citizens or residents.

The problem may be real, but the administration's proposed solution is once again too broad. The administration argues that it is seeking to intercept only foreign-to-foreign communications that happen, by technological accident, to pass through the United States, or foreign-to-domestic communications from suspected terrorists. But the language it proposes would remove from FISA's coverage any surveillance "directed at a person reasonably believed to be located outside of the United States," with no requirement that the person be suspected of terrorism. The proposal would permit the government to intercept all international phone calls and e-mails without warrants unless a U.S. citizen or permanent resident were the "primary target" of the surveillance. Instead of having the special FISA court ensure that surveillance is being done properly, that job would be up to the attorney general. The administration was offering modifications yesterday, but these, too, appear far too permissive.

Democrats have proposed a better alternative that would keep the FISA court in the mix while making the procedures for obtaining warrants less cumbersome. We are wary of hurry-up lawmaking, which leaves little time for scrutiny. The critical part of the Democratic proposal is its short time frame: It would expire after six months. That should provide enough time for measured consideration of what changes may be needed in FISA.

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