Surveillance Update

Sunday, October 14, 2007

WHEN IT comes to updating the Foreign Intelligence Surveillance Act for a new technological age, the Bush administration refuses to take yes for an answer.

The House is poised this week to take up a carefully crafted revision to the law that addresses the administration's valid complaint about the old statute: that because of technological changes in international communications, intelligence agencies were being required to go through the time-consuming process of obtaining court orders to eavesdrop on foreign targets. The measure produced by the House Intelligence and Judiciary committees would alleviate the burden of obtaining individualized warrants in such situations while still maintaining a critical oversight role for the FISA court. Instead of having to seek warrants on a case-by-case basis, intelligence agencies would be able to obtain blanket, year-long orders from the court for such surveillance programs. However, the FISA court would have to approve the procedures under which that surveillance is conducted -- specifically, to ensure that appropriate safeguards are in place to protect the privacy of Americans whose communications with foreigners happen to be intercepted.

The administration, however, has deemed this sensible change unacceptable. Instead, it wants lawmakers simply to make permanent the overly broad statute rushed into law before Congress left for its August recess. That law virtually eliminates any meaningful role for the FISA court and largely relies on intelligence agencies to police themselves.

The administration says that FISA wasn't intended to cover the collection of intelligence information overseas. That is correct, but many of the communications are being intercepted in the United States and, more important, may involve U.S. citizens. In that situation, and with telephone and e-mail communications between the U.S. and foreign countries far more common than when FISA was enacted in 1978, it is reasonable to bring the court into the picture. The measure strikes an appropriate balance between the demands of some civil liberties groups for individualized warrants and the administration's desire for sweeping authority.

There is one major area of disagreement between the administration and House Democrats where we think the administration has the better of the argument: the question of whether telecommunications companies that provided information to the government without court orders should be given retroactive immunity from being sued. House Democrats are understandably reluctant to grant that wholesale protection without understanding exactly what conduct they are shielding, and the administration has balked at providing such information. But the telecommunications providers seem to us to have been acting as patriotic corporate citizens in a difficult and uncharted environment.

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