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A Better Surveillance Law

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Friday, June 20, 2008

CONGRESSIONAL leaders of both parties should be commended for drafting legislation that brings the country's surveillance laws into the 21st century while protecting civil liberties and preserving important national security prerogatives. The bill is scheduled to be voted on today in the House, and it deserves to pass.

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The bill amends the Foreign Intelligence Surveillance Act of 1978, which was designed to constrain the executive branch's domestic spying powers. The surveillance law became a focus of debate in 2005 after revelations that President Bush bypassed FISA shortly after the 2001 terrorist attacks and unilaterally approved warrantless domestic surveillance. Many Democrats pressed for more protections to prevent future warrantless excursions; Republicans claimed that the law needed to be changed to allow the president as much flexibility as possible to thwart potential threats.

Lawmakers, led by John D. Rockefeller IV (D-W.Va.) and Christopher S. Bond (R-Mo.) in the Senate and Steny H. Hoyer (D-Md.) and Roy Blunt (R-Mo.) in the House, have struck a sensible balance. To avert another end run around FISA -- President Bush used the congressional authorization for military force in 2001 as justification for warrantless surveillance -- the bill makes clear that all intelligence surveillance is governed by FISA. The legislation mandates that the administration obtain a court-approved, individual warrant for any spying activity directed at a U.S. citizen -- whether that citizen is on U.S. soil or abroad -- and that the administration prove it has "probable cause" to believe that the person is engaged in espionage. The procedures used for surveillance of non-U.S. citizens on foreign soil must be approved by the FISA court and reviewed annually. The inspectors general of the Justice Department and the intelligence agencies are charged with reviewing the surveillance programs, with particular focus on how many U.S. citizens are targeted, how many domestic surveillance projects are requested and undertaken, and whether the methods used by the administration to obtain warrants and carry out surveillance are narrowly tailored and show respect for civil liberties. The intelligence and judiciary committees of both chambers will have oversight powers; currently, only the intelligence committees have that responsibility. If passed today, the bill would be up for review in 2012.

Yet the compromise bill also preserves appropriate flexibility for the executive. In emergencies, the attorney general and the director of national intelligence could begin a surveillance project without a FISA warrant, but they would have to seek FISA approval within seven days. The bill also provides appropriate protections from civil lawsuits for telecommunications companies and gives these companies access to the FISA court to challenge requests they deem improper.

Striking the balance between liberties and security is never easy, and the new FISA bill is not perfect. But it is a vast improvement over the original law and over the earlier, rushed attempts to revise that law. It also provides some welcome evidence that congressional leaders remain capable of achieving delicate compromise in the national interest.


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