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Fixing FISA

Limited changes to the surveillance law can be made quickly. But other reforms need greater study.

August 03, 2007

As it shifts into overdrive before a summer recess, Congress is debating whether to oblige the Bush administration with changes in the Foreign Intelligence Surveillance Act, a law that the administration ignored for five years as the National Security Agency -- without court approval -- monitored the international phone calls and e-mails of U.S. residents suspected of ties with foreign terrorists.

Our advice: Hurry up and wait.

We don't object to prompt action to exclude from the privacy protections of FISA calls and e-mails between terrorist suspects abroad that happen to be routed through the United States. Indeed, this page endorsed the idea when it was raised in May by Director of National Intelligence J. Michael McConnell. That technical adjustment may have been made more urgent by a decision of the secret court created by FISA to monitor electronic surveillance.

But as it hastens to make that adjustment, Congress should postpone more significant changes in FISA until it has time to scrutinize not only the administration's broader proposals but also those offered by members of Congress with a better reputation for protecting civil liberties.

The Bush approach, reflected in a bill sponsored by Senate Minority Leader Mitch McConnell (R-Ky.) and Sen. Christopher S. Bond (R-Mo.), is clearly objectionable. It would allow the executive branch -- originally the attorney general, now the attorney general and the national intelligence director -- to decide whether a target is "a person reasonably believed to be located outside of the United States." The privacy protections of FISA would come into play only if the surveillance were primarily aimed at gathering information about a U.S. resident.

Democrats led by Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Intelligence Committee, have responded with an interim plan of their own. In addition to exempting "foreign-to-foreign" eavesdropping from FISA, it would make the FISA court -- not the executive branch -- the primary monitor of surveillance of foreigners who might be in touch with residents of this country. If a foreign party subject to interception had a "significant" pattern of communications with U.S. persons, a specific court order would have to be obtained. Rockefeller's proposal, which "sunsets" after six months, is preferable to the Republican bill. But even it seems to allow for additional eavesdropping on Americans.

With or without a quick fix, a searching re- appraisal of FISA is overdue. So is a fuller accounting of the balance that is being struck between Americans' privacy and their protection from terrorism.

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