President Bush, with characteristic exaggeration, charges that the nation is in "more danger of attack" by terrorists because Congress allowed a stopgap electronic surveillance law to lapse last Saturday without approving a new statute. Congressional Democrats reply that the expiration of the Protect America Act will have minimal effect because intelligence agencies can continue to monitor the telephone calls and e-mails of suspected foreign terrorists -- even if they are conversing with people in the United States -- at least until August.
Bush does have a point. Congress has had plenty of time to replace the Protect America Act, a flawed measure approved last summer, with amendments to the Foreign Intelligence Surveillance Act that would provide meaningful protection for Americans' privacy. Even so, Bush shares in the blame for the delay. He could have had a new FISA bill by now if he hadn't insisted that any surveillance legislation include retroactive legal immunity for telecommunications companies that cooperated with the National Security Agency. The Senate agreed to grant immunity, but the House balked, and the impasse has stalled agreement on a compromise between the two chambers' versions of a "FISA fix," both of which would increase judicial supervision over the program.
The White House and House Democrats are needlessly fixated on retroactive immunity. The administration, echoed by House Republican leaders, warns darkly that the lack of immunity for past cooperation by telecoms will deter the companies from cooperating in the future; yet both versions (properly) make it clear that companies that comply with lawful orders in the future have nothing to fear. For their part, House Democrats overstate the usefulness of private litigation as a way to pry loose information about the Terrorist Surveillance Program. The Democrats' opposition to immunity may have made sense as a bluff to induce the administration to provide Congress with documents relating to the program, as it belatedly has begun to do. But the possibility that private lawsuits would expose internal deliberations about the origins of the program was always slight. That sort of disclosure is even less likely after the Supreme Court refused this week to reinstate a lawsuit the American Civil Liberties Union filed against the NSA on behalf of lawyers, journalists and academics who claimed they were harmed by the surveillance program.
If the administration insists on retroactive immunity, it should accept a compromise floated by Sen. Dianne Feinstein (D-Calif.) that would allow the FISA court to determine if the telecoms acted in good faith and should be protected from lawsuits. But however it is addressed, immunity is a sideshow. Congress and the White House should turn their attention to safeguarding Americans' privacy.