It’s Bush’s call

This week, two House committees made good on a Democratic promise to approve new privacy protections for Americans innocently caught up in the eavesdropping on suspected terrorists by the National Security Agency. But President Bush is threatening to veto the legislation. He is particularly aggrieved that it wouldn’t provide retroactive immunity from lawsuits for telephone companies that cooperated with his so-called Terrorist Surveillance Program.

If Bush wants Congress to hold the telephone companies blameless, he should accept the legislation approved this week by the House Judiciary and Intelligence committees and make a full accounting of how -- and on what supposed legal basis -- the eavesdropping initiative was approved in the first place.

After the 9/11 attacks, Bush determined that U.S. intelligence agencies needed to be more aggressive in intercepting telephone calls and e-mail between suspected foreign terrorists and people in the United States. He then faced a choice: He could publicly ask Congress to remedy what he saw as shortcomings in the Foreign Intelligence Surveillance Act, the 1978 law that required judicial oversight of domestic wiretapping of suspected foreign agents. Or he could act on his own, and in secret, to authorize the monitoring of electronic communications involving Americans.

Abetted by Vice President Dick Cheney, who long had resented what he regarded as congressional encroachment on executive authority, Bush made the latter choice. It was the wrong one, as even some of the president’s lawyers realized (witness the now-famous 2004 confrontation in former Atty. Gen. John Ashcroft’s hospital room). Only this year, after the election of a Democratic Congress, did Bush shift ground and agree to allow the program to be supervised by the secret federal court created by FISA.

This acceptance of judicial oversight proved to be short-lived. When the court found fault with aspects of the program -- reportedly ruling that FISA required the government to seek a court order for “foreign-to-foreign” communications that are routed through the United States -- Bush pressed Congress to do much more than close what everyone agreed was a loophole created by advances in technology.

The sorry result was a temporary law approved in August that took the FISA court out of the business of monitoring the wiretapping of anyone authorities reasonably believed to be outside the country -- including Americans abroad on business or a vacation. To their credit, even Democrats who supported the temporary “FISA fix” -- such as California’s Sen. Dianne Feinstein -- vowed that Congress would revisit FISA when it returned from summer recess.

That promise is redeemed by the RESTORE Act of 2007 (an acronym for Responsible Electronic Surveillance That is Overseen, Reviewed and Effective) approved by the two House committees. It would require the government to petition the FISA court for generalized orders authorizing the electronic surveillance of foreign individuals or groups outside the United States. Spying on Americans abroad would require a specific court order based on probable cause. And if, as a result of the surveillance of foreigners, an American on the other end of the phone call or e-mail came under suspicion, the government would have to apply for a specific court order to monitor that individual’s communications. The court also would approve “minimization” procedures for purging information about Americans that inadvertently was gathered in the surveillance.

Supporters of the legislation concede that it allows the government to listen in on conversations involving people in the United States, at least for a time, without having demonstrated that the “U.S. person” whose words are being recorded is a terrorist suspect. What matters, they say, is that the inspector general of the Justice Department would be obliged to monitor and report to the FISA court and to Congress the extent of incidental eavesdropping on Americans.

Bush should endorse these and other safeguards in the RESTORE Act, which wouldn’t prevent the intelligence community from monitoring the communications of suspected foreign terrorists. As for the phone companies, the resistance in Congress to granting them immunity to a great extent reflects the view that lawsuits against them might be the only way to obtain an accounting of exactly what the Terrorist Surveillance Program involved -- wiretapping only, or the widespread data mining of phone records? If the president really wants to spare the companies the threat of litigation, he must level with Congress and the country about how much privacy Americans are sacrificing in the war on terror.