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Eyes on the ears

The new Congress should give top priority to regulating the NSA's domestic surveillance program.

December 12, 2006

ALMOST A YEAR after President Bush confirmed that the National Security Agency had been eavesdropping on some Americans without a court order, expressions of outrage in Congress have yet to be translated into law. What little scrutiny the so-called Terrorist Surveillance Program has received has come from the Justice Department, whose inspector general is looking into how information gathered by the program has been used.

Surely, you say, Congress will be more assertive under Democratic control. Don't count on it.

True, Sen. Patrick J. Leahy (D-Vt.) warned FBI Director Robert S. Mueller III the other day that the new Congress will take a fresh look at the administration's surveillance programs, which he said the White House had gone to "unprecedented lengths" to hide from the public. But Sen. Arlen Specter (R-Pa.), who will hand over the Judiciary Committee gavel to Leahy, is pessimistic that a change of party control will make a big difference. Specter, who has sponsored no fewer than three bills to provide a legal framework for the program, said last month he had "grave reservations" that any legislation will be approved. The impediment, he said, was less a lack of consensus in Congress than the White House's unwillingness to share "secrets" about how the NSA program operates.

Of the three Specter-endorsed bills, the best is a measure he co-sponsored with Sen. Dianne Feinstein (D-Calif.). It would reaffirm that NSA surveillance is covered by the 1978 Foreign Intelligence Surveillance Act, which requires an order from a special court before electronic surveillance may be conducted on a U.S. citizen. But it would make it easier for surveillance to be conducted without a warrant in a terrorist emergency.

Feinstein, a member of the Intelligence Committee as well as the Judiciary Committee, has been briefed on the NSA program, as has incoming House Speaker Nancy Pelosi (D-San Francisco). Unfortunately, Feinstein must ask colleagues to take on faith her assurances that the program's objectives can be accomplished within a slightly relaxed FISA framework.

The administration hasn't made Feinstein's job any easier by refusing to offer a meaningful explanation of why it felt it necessary to bypass FISA in the first place. That made it difficult to win support in the Senate for any of Specter's proposals.

Democratic victories in midterm elections should mean that Congress will be more interested in regulating the NSA program. But inertia is a strong force. Moreover, many Democrats -- especially newcomers from Republican-leaning states -- will be reluctant to counter the administration's propagandistic argument that only Americans who regularly call Al Qaeda need to worry about the program. In fact, one of the main purposes of judicial oversight would be to ensure that this claim is true.

Overcoming that inertia -- with the help of Republicans like Specter -- should be at the top of the new majority's agenda.

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