Rules for Spying

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Sunday, March 16, 2008

THE PROCESS of working out a reasonable compromise on the law governing the surveillance of foreign targets has been long and painful. With the House's passage of a second version of the measure, the fight is far from over. Deep divisions remain, particularly over whether telephone companies that received official assurances that their participation in the warrantless wiretapping program was lawful should be shielded from private lawsuits. The Senate -- correctly, we believe -- provided such protections in its version of the measure. The House continues to reject this so-called "amnesty," frustrating a needed compromise on a measure that President Bush will sign.

Rather than fighting over whether lawsuits over past surveillance should be allowed to proceed, lawmakers should be focused on assuring that adequate protections are in place to govern surveillance going forward. On that count, the Senate intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), got it right when he described the House measure as "a step in the right direction" while noting that "considerable work remains." Mr. Bush overstated the case when he thundered that the House measure "would cause us to lose vital intelligence on terrorist threats."

The House bill is an improvement over the Senate measure in some ways. For instance, it clarifies that the statute sets out the exclusive authority under which such intelligence is to be gathered -- preventing a future administration from repeating this administration's warrantless wiretapping. However, it has flaws that go beyond the immunity question. Its two-year sunset provision, which would cause the law to expire in the middle of the next president's first term in office, is too short. The six-year sunset in the Senate measure is too long, however; four years would be an appropriate compromise.

More fundamentally, it's not clear that the House measure strikes the right balance between giving intelligence agencies the flexibility they need to respond nimbly to new circumstances and ensuring adequate court oversight to protect the privacy rights of U.S. citizens. The Senate-passed measure envisions that such surveillance can be launched and that the court oversight will come later; the new House measure assumes that, except in emergency circumstances, the court approval will be obtained in advance. That is too constraining.

The most important consideration is whether there is searching, robust court review of the surveillance and procedures to minimize the invasion of Americans' privacy rights, whether that comes before or after the surveillance has been launched. The Senate and House should work with the administration to achieve that result. They would be wise to do so soon, before the current set of surveillance orders begins to expire in August, so that lawmakers do not find themselves once again legislating these complex issues in haste.


© 2008 The Washington Post Company

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