A good-enough spy law

Nancy Soderberg was a deputy national security advisor and an ambassador to the United Nations under President Clinton.

In their rush to get home for their Fourth of July vacations, the members of the Senate left some important work on their desks -- the FISA Amendments Act of 2008. The bill is a rare bit of common sense in this election-year cycle and should be passed first thing upon the Senate’s return.

After much political rancor, House Republicans and Democrats came together last month and passed a compromise bill that will bring the country’s surveillance laws into the 21st century, yet still protect individual civil liberties. The Senate is dragging its feet because the compromise bill’s opponents -- mostly Democrats -- want also to punish the telecommunications companies that answered President Bush’s order for help with his illegal, warrantless wiretapping program. That is the wrong target.

In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration’s effort to do a better job of “connecting the dots” to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration’s written requests and directives indicated that such assistance “had been authorized by the president” and that the “activities had been determined to be lawful.”


We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power.

The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions. While that’s tough for many of us to swallow, the compromise still strikes the right balance between protecting our rights and our national security.

It would force an administration to use FISA courts (FISA refers to the Foreign Intelligence Surveillance Act, which set up these courts in the 1970s) to obtain a court-approved, individual warrant for spying activity directed at an American citizen. The government would have to show “probable cause” that that person was engaged in terrorist activities or espionage against the United States.

These are strong measures to protect American civil liberties. More controversial is the bill’s provision to allow in an emergency -- such as the aftermath of a terrorist attack -- the attorney general and the director of national intelligence to begin a surveillance project without a FISA warrant as long as they seek FISA approval within seven days.

But what’s most objectionable to some Democrats is a provision that provides telecommunications companies accused of past wrongdoing the right to have their cases reviewed in district court. If the court finds the companies received written legal requests from the president or attorney general to provide crucial information, then civil lawsuits would be dismissed. Going forward, the new process would also protect the companies from litigation.

These are all sensitive issues for civil libertarians and national security experts alike. But the bill strikes a fair balance. Sen. Barack Obama, the Democrats’ presumptive presidential candidate, said it was a close call but he had decided to endorse the bill. As he explained, the bill won’t allow the president to “suggest that somehow there’s some law that stands above the laws passed by Congress in engaging in warrantless wiretaps.”


The rest of the party should follow Obama’s lead. Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it’s necessary.

Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution. In the words of the Senate Intelligence Committee, the “possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation.” That was a conclusion that reached across party lines, as does the compromise bill.

This should not be a partisan political question. Those on both sides of the issue are equally patriotic. Opponents rightly want to assure that the privacy of citizens is not put at risk. Proponents are right too in seeking to ensure the continued cooperation of the telecommunications industry in the war on terrorism.

The compromise bill satisfies both sides: Under congressional oversight, it puts the responsibility for past surveillance squarely on the administration, where it belongs, and allows the courts to determine the legality of these actions.

In this case, the government should be held responsible, not private industry.