Progress on Surveillance

Saturday, October 27, 2007

THE SENATE intelligence committee's bipartisan rewrite of the Foreign Intelligence Surveillance Act is not perfect, but it illustrates that there is a path to a reasonable compromise that would give intelligence agencies the flexibility to intercept foreign communications while strengthening oversight of their activities. The proposal has the backing of the intelligence panel's top Democrat and Republican, Sens. John D. Rockefeller IV (D-W.Va.) and Christopher S. "Kit" Bond (R-Mo.), and the Bush administration has expressed a welcome openness to the approach.

The biggest sticking point -- and the biggest difference between the Senate bill and a measure backed by the House intelligence and judiciary committees -- doesn't involve the terms under which surveillance would be conducted. Rather, it concerns the question of retroactive immunity from lawsuits for communications providers that cooperated with the administration's warrantless surveillance program. As we have said, we do not believe that these companies should be held hostage to costly litigation in what is essentially a complaint about administration activities.

Immunity aside, both the Senate and House bills would create a strong oversight role for the special court that oversees FISA. Under both measures, the court would review the procedures used to determine that targets of surveillance are outside the United States and to effect the "minimization" measures designed to protect the privacy of U.S. citizens whose communications are inadvertently intercepted.

The Senate measure would expire in six years while the House version would expire in less than two years, along with provisions of the USA Patriot Act; the shorter House time frame is preferable. An amendment to the Senate bill by Oregon Democrat Ron Wyden would go too far by requiring that a warrant be obtained when U.S. citizens are the target of surveillance overseas; this would be an unnecessary and potentially disruptive precedent.

As the debate proceeds, lawmakers and the administration need to keep in mind the big-picture points that have, at times, eluded both the Bush administration and some civil liberties groups. Intelligence agencies should be able to intercept the communications of foreign targets overseas without the burdensome and unnecessary requirement of obtaining an individual warrant every time. But that power, and the potential threat to Americans' privacy that it inevitably entails, needs to be checked and constrained, including by the kind of meaningful court review that was not present in legislation that the administration muscled through Congress this year. The Senate intelligence measure, which outlines one path for achieving this balance, is a badly needed contribution to what has been an unnecessarily partisan


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