Finessing the fix

You need a score card to keep up with efforts in Congress to bring more accountability to the National Security Agency’s surveillance of telephone calls and e-mails between suspected foreign terrorists and residents of the United States. What matters is that the Bush administration is now likely to accept greater privacy safeguards than were contained in this summer’s temporary “fix” of the Foreign Intelligence Surveillance Act.

When last we left the effort to set rules for the so-called Terrorist Surveillance Program, the House Judiciary and Intelligence committees had approved the RESTORE Act, which would have made it harder for government eavesdroppers to engage in prolonged backdoor surveillance of U.S. citizens. But, fearful of Republican delaying tactics, Democratic leaders pulled the bill from the calendar.

Fortunately, the cause of reform was picked up by the Senate Intelligence Committee. It has approved a bill -- now being debated by the Judiciary Committee -- that could lead the administration to abandon its original insistence that the six-month FISA fix be made permanent. That law removed from judicial oversight the wiretapping of anyone authorities reasonably believed to be outside the country -- including citizens of the United States.

Unlike the House version, the Senate Intelligence Committee bill doesn’t require the government to secure “basket warrants” from the Foreign Intelligence Surveillance Court before eavesdropping on suspected foreign terrorists. But it would strengthen judicial oversight in other ways. The court would review both procedures for targeting non-U.S. persons abroad and those dealing with the “minimization” (sequestering) of information inadvertently collected about Americans. Under this summer’s fix, the court could overturn such procedures only if they were “clearly erroneous.” The Senate bill removes that language, increasing the court’s discretion.

The bill also provides protections for Americans, though not as many as we would like. It prohibits “reverse targeting” of U.S. persons under the pretense of targeting a foreigner. If intelligence agencies wanted to target a U.S. person, even one living abroad, they would have to obtain a court order based on probable cause.

Finally, and controversially, the Senate bill would grant retroactive immunity to telecommunications companies that cooperated with the surveillance program, a concession not contained in the House bill. As we have said before, such immunity should be granted only if the administration agrees to make a full accounting to Congress of the legal authority on which it expanded electronic surveillance without a court order after the attacks on 9/11.