Trust, but verify

In a telling sign of President Bush’s credibility problems on Capitol Hill, lawmakers hit an impasse last week over a Senate bill (S 2248) to reauthorize something administration officials like to call the “terrorist surveillance program.” Who could be against keeping a close watch on terrorists?

If only the issue were that simple. Although there’s wide agreement that the calls and e-mails of suspected terrorists overseas should be fair game for interception, such surveillance often ends up tracking what U.S. citizens do in this country. The administration wants to let the attorney general and the director of national intelligence decide when eavesdropping on foreign targets is appropriate, without the need for court warrants or supervision. But some Senate Democrats, sensitive to the 4th Amendment’s limit on searches, want more safeguards against indiscriminate or illegal tapping of Americans’ international communications.

It’s hard for lawmakers to resist when a president asks for tools that could help protect national security. That’s particularly true when an existing tool -- in this case, the 2007 law that gave the administration wide latitude on warrantless wiretaps -- is set to expire soon. This president, however, has earned Congress’ resistance by repeatedly using national security and terrorism as a rationale for circumventing the law and ignoring constitutional rights. That’s why the modest restraints sought by critics in the Senate are worth fighting for.

These include proposals that would beef up the role of the Foreign Intelligence Surveillance Court in monitoring the recording of international calls or e-mails made by Americans. Another worthwhile amendment, by Sen. Dianne Feinstein (D-Calif.), would bar lawsuits against phone and Internet companies involved in warrantless surveillance only if the wiretap request complied with federal law or if company executives had good reason to believe that their cooperation was legal. It’s important that phone companies and Internet providers cooperate fully with legal surveillance requests, and that they not be put at risk for doing so. On warrantless wiretaps, however, those firms are the only potential check against unlawful snooping. If they’re protected from any liability, they will have no reason to question the legal basis for the government’s requests.

It’s worth remembering that under the law, the overseas targets of electronic surveillance don’t have to be terrorists. “Foreign intelligence” can also be information about Russian military maneuvers, Venezuelan oil sales or Chinese government investments. That’s too wide a net to leave to the discretion of an administration, especially one that has shown we can’t trust its judgment.