A blank check for snoops


LIKE THE CAVALRY RUSHING to the aid of the wrong troops, four Republican senators who had earlier declared battle against the Bush administration’s warrantless wiretapping have now proposed to give the surveillance program five years of near-bulletproof protection.

The new measure by Mike DeWine of Ohio, Lindsey Graham of South Carolina, Chuck Hagel of Nebraska and Olympia Snowe of Maine would significantly expand the administration’s power to intercept U.S. citizens’ international phone calls and e-mails without obtaining a warrant -- even when they have not been implicated in any crime. It also would let the surveillance continue with much less oversight than Congress demanded in previous laws.

The four had voiced alarm about the program after it became public in December. Hagel and Snowe even threatened to vote with Democrats on the Senate Intelligence Committee to launch a full investigation into what the National Security Agency has been doing. On Tuesday, however, Hagel and Snowe voted with their fellow Republicans to reject an investigation. Instead, in a deal with the White House, the committee created a seven-member terrorism surveillance subcommittee to receive regular briefings about domestic spying.


After the closed-door meeting, Republicans outlined a bill ostensibly to limit such surveillance and make it more accountable to lawmakers. But its provisions suggest that they are less concerned about the administration violating Americans’ legal rights than about Congress being kept out of the loop.

Rather than restraining runaway executive power, the bill would effectively legalize the current spying program -- or at least the program that administration officials have publicly acknowledged. The bill would allow the feds to spy on a U.S. resident’s international calls or e-mails without a warrant for up to 45 days -- or 42 days more than the law currently allows. Investigators would only have to demonstrate probable cause -- to themselves, not a judge -- that at least one of the people involved was a member or supporter of a designated terrorist group. After that month and a half, the warrantless surveillance could continue if the attorney general insisted that it was necessary to protect the United States.

These are the rules the administration claims to be abiding by already, but they’re worlds different from existing law. Under the Foreign Intelligence Surveillance Act, investigators can tap lines for no more than three days without a warrant, and only in emergencies. They also must demonstrate probable cause to a federal court that the person is engaged in terrorism or knowingly helping terrorists.

The DeWine bill trusts a small group of lawmakers, not federal judges, to ensure that the administration stays within the new limits. Otherwise, it’s up to the administration to certify that its activities comply with the law. Given its track record, that’s tantamount to no control at all.

The 4th Amendment bars unreasonable searches, which the courts have interpreted to mean those based merely on the whiff of suspicion. That’s the central problem with the administration’s domestic surveillance program, and DeWine’s bill does not begin to solve it.