A flicker of life on the Hill

SOME PRIVACY ADVOCATES ARE troubled by reports in The Times and in other newspapers Friday that the U.S. government has been trying to detect terrorist plots by sifting through an international database of financial transactions. But whatever one thinks of this initiative — and it’s worth pointing out that people wiring money overseas do not have the same expectation of privacy they do when making a phone call — the Bush administration can argue that the program is specifically authorized by laws passed by Congress.

If so, it is dramatically different from the more notorious anti-terrorism initiative that came to light late last year: the National Security Agency’s warrantless surveillance of the international phone calls and e-mail messages of Americans thought to have ties with foreign terrorists. That so-called Terrorist Surveillance Program (as the White House has insisted on calling it ever since its existence was first revealed last year) ) is simply impossible to reconcile with the landmark Foreign Intelligence Surveillance Act, or FISA, which requires investigators to obtain a court order to eavesdrop on U.S. citizens. Yet Congress essentially has acquiesced in the flouting of its own enactment.

True, Sen. Arlen Specter, the Pennsylvania Republican who chairs the Judiciary Committee, has said the program is incompatible with FISA and has called for a court to determine its constitutionality. But legislation to bring the NSA spies in from the legal cold has stalled, and Specter has complicated matters by simultaneously pressing his own bill and signing on to a (superior) measure proposed by Sen. Dianne Feinstein (D-Calif.). Most disappointing of all, the Senate squandered an opportunity to link the confirmation of CIA Director Michael V. Hayden, a former head of the NSA, to a fuller accounting by the administration of why it bypassed FISA and a promise to comply with the law in the future.

Fortunately, stirrings elsewhere on Capitol Hill offer a glimmer of hope for legislation to rein in the NSA. This week, 23 House Republicans joined 183 Democrats in supporting an amendment to a Defense appropriations bill that would have prohibited expenditures for electronic surveillance in the United States except pursuant to criminal wiretapping statutes and FISA. The amendment was cosponsored in part by Rep. Adam B. Schiff (D-Burbank) and Rep. Jeff Flake (R-Ariz.), who have introduced a separate measure, the NSA Oversight Act, which would make it clear that FISA remains the sole authority for the surveillance of Americans on American soil.

This week’s amendment failed, but Schiff was encouraged by the number of Republicans who supported it. They included conservatives such as Walter B. Jones of North Carolina and Ernest Istook of Oklahoma. That bodes well for consideration in the House of the NSA Oversight Act. So does a vote by the Republican-controlled House Judiciary Committee this week to demand that the administration provide the panel with information about NSA spying on Americans. If the House stirs itself to regulate the program, the Senate also might act. In both chambers, Republican support will be vital.

A bipartisan effort to rein in the NSA isn’t as far-fetched as it might seem. It has been clear since the original debate over the Patriot Act that Democrats aren’t alone in worrying about overreaching by the executive branch under the rubric of the war on terror. Such corner-cutting also troubles libertarians in the Republican Party whose qualms about surveillance are rooted in a more general suspicion of a powerful federal government. Congress is unlikely to check the president on domestic surveillance unless these Republicans blend their voices with those of Democratic critics.

The issue is not whether the government should make use of cutting-edge communications technology to learn whether terrorists are plotting attacks on Americans. Of course it must. The issue is whether in doing so the executive branch will abide by the law, as it apparently did in the criminal investigation that produced this week’s arrest of seven suspected terrorists in Miami.

Democrats in both houses of Congress who would hold the Terrorist Surveillance Program to the same standards should welcome libertarian-minded Republicans to the cause. You don’t have to be a Democrat, or a liberal, to demand that the administration either comply with FISA in trawling for terrorists in this country or tell Congress why and how the law should be changed. Like the war on terror, the protection of Americans’ privacy isn’t a partisan issue.