Wiretapping oversight

AT LEAST SOME SPINES IN Congress are stiffening when it comes to challenging President Bush’s assertion that the National Security Agency can eavesdrop on Americans without a court order. But it will take a stronger show of resolution to call the administration to account.

In a recent meeting with The Times’ editorial board, House Minority Leader Nancy Pelosi (D-San Francisco) -- who raised concerns about NSA spying with the Bush administration four years before it was publicized -- said she is still uncomfortable with limited congressional access to details about the program. Her colleague, Rep. Jane Harman (D-Venice), the ranking Democrat on the House Intelligence Committee, voted against the 2007 Intelligence Authorization Bill to protest the administration’s sweeping rationale for the program and the refusal of the Rules Committee to specify that all surveillance of Americans on U.S. soil must follow the law.

Finally, Sen. Arlen Specter, chairman of the Senate Judiciary Committee, has said that he might seek to cut off financing for the NSA surveillance program unless the administration is more forthcoming about its scope. “When you talk about withholding funds, there you’re talking about a real authority,” the Pennsylvania Republican said.

Unfortunately, other members of Congress have been much less assertive about the NSA spying program, whose existence is known only because of a report in December by the New York Times and whose contours are still unclear.

Consider the Terrorist Surveillance Act proposed by four Republican senators who criticized the NSA program when it was first made public. As we observed before, the measure by Mike DeWine of Ohio, Lindsey Graham of South Carolina, Chuck Hagel of Nebraska and Olympia Snowe of Maine would essentially legalize what the administration is already doing with less oversight than Congress has insisted on in previous laws. For instance, the government could spy on a U.S. resident’s international calls or e-mails without a warrant for up to 45 days. 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 terrorist group. After that, the warrantless surveillance could continue if the attorney general insisted that it was necessary.

DeWine insists that the bill doesn’t give the president a “blank check,” but it’s still too generous to intelligence officials who chafe under the warrant requirements of the 1978 Foreign Intelligence Surveillance Act, which requires the government to seek an order for domestic wiretapping from a (usually complaint) special court. And although the DeWine proposal provides for briefings to special intelligence subcommittees in the House and Senate, that is less oversight than Specter is willing to see.

But more is required than a retroactive legalization of the current NSA program and an expansion of congressional oversight -- or, as Specter also has proposed, legislation requiring the Foreign Intelligence Surveillance Court to rule on the constitutionality of the program. Congress needs to go back to basics and determine whether, as the administration maintains, the safeguards contained in that law make it impossible for the government to be vigilant in tracking terrorists. Only then should it pass new legislation.

Most discussion of NSA surveillance assumes that the agency starts with the names of individuals thought to be in contact with foreign terrorists; if that’s the case, it is hard to see why the administration couldn’t do what it wants to do under the Foreign Intelligence Surveillance Act, which in emergency situations allows the government to eavesdrop for 72 hours before obtaining a warrant. But a lawsuit filed by the Electronic Frontier Foundation against AT&T; has led to speculation that, at least at the first stage, the NSA is casting a much wider net by data mining a multitude of electronic communications in search of telltale words or phrases.

If the administration believes that the war on terror requires that level of intrusion on the privacy of Americans, it should defend that proposition and ask Congress to amend FISA.

We’d like to think that the protests by Specter, Pelosi and Harman would induce the administration to be more forthcoming. But it probably will require more members of Congress to demonstrate backbone for the president to get the message that he must follow the FISA law -- or explain why it should be changed.