Privacy and spying

ALMOST SIX MONTHS AFTER Americans first learned that the National Security Agency was eavesdropping -- without a court order -- on the telephone calls and e-mail messages of some U.S. citizens, indignation on Capitol Hill has yet to be translated into action. That could change if the Senate Judiciary Committee acts on legislation to regulate the so-called Terrorist Surveillance Program.

Committee Chairman Arlen Specter (R-Pa.), an early and articulate critic of the program, on Tuesday deferred his plan to question telephone company executives about whether they cooperated with the NSA. That may be a blessing in disguise. Specter can now turn his and the panel’s attention to legislation to deal with the program at its source. Several such proposals are before the committee, including Specter’s own bill, which would have a special federal court rule on the constitutionality of the program. The best bet is a bill offered by Sen. Dianne Feinstein (D-Calif.), which Specter also has endorsed (although his priority is enactment of his own bill).

Some civil libertarians believe that Congress should enact no law legitimizing the program until the Bush administration comes clean -- to the public, not just Congress -- about exactly what it consists of and why its aims couldn’t be achieved under the 1978 Foreign Intelligence Surveillance Act. That landmark law, known as FISA, requires a special court to approve the electronic surveillance of U.S. citizens while allowing investigators to engage in warrantless wiretapping in an emergency.

Unfortunately, the best opportunity to elicit such an explanation from the administration -- the Senate confirmation hearings for CIA Director Michael V. Hayden -- came and went without much elucidation about what the NSA is doing and why it would be impractical under FISA. For all the indignation by some members, Congress as a whole has acquiesced in the NSA program. So the question is not whether the surveillance program will go forward, or even whether its legitimate aims might have been achieved within the FISA framework. The issue now is whether Congress will apply some meaningful safeguards to what has until now been a freelancing exercise by the executive branch.

Unlike a weak alternative championed by Sen. Mike DeWine (R-Ohio), the Feinstein-Specter bill would provide such accountability. It would relax the standards of FISA somewhat, increasing from 72 hours to seven days the emergency period before investigators would have to seek a warrant. But it would make it clear that FISA is the “exclusive means” by which the government may conduct electronic surveillance of Americans on U.S. soil. And it would deny funding for surveillance outside the boundaries of the law. Feinstein, who as a member of the Senate Intelligence Committee has been privy to at least some of what the NSA has been doing, says that this legislation balances the administration’s “need for timely action” with respect for privacy rights and judicial oversight.

Ideally, the Bush administration would be more forthcoming about why it decided to operate outside the FISA system. But if the problem was that the FISA process was too sluggish, the Feinstein-Specter bill addresses that concern. It belongs on the books.