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Watching the watchers

Congress must give courts a strong role in monitoring government surveillance of U.S. citizens.

August 21, 2007

For those who believe that the Bush administration has subverted civil liberties in the war on terrorism, it's easy to be heartened by comments made last week by federal appeals court judges weighing legal challenges to electronic surveillance of U.S. citizens without a court order. Too easy, unfortunately.

It's gratifying that a three-judge panel of the U.S. 9th Circuit Court of Appeals voiced skepticism about the administration's argument that two lawsuits -- one brought against the government by an Islamic charity, the other an attempt by AT&T customers to obtain damages for "data mining" of phone records they say the company engaged in at the government's behest -- should be dismissed because they might reveal state secrets. When Deputy Solicitor General Gregory Garre argued that courts should show "ultimate deference" to the president on that question, Judge Harry Pregerson shot back: "What does 'ultimate deference' mean? Bow to it?"

Brave words, and the panel may well rule that a federal district court can proceed with the lawsuits. But if the panel rules against the administration in one or both of these cases, the government is likely to appeal to a more congenial tribunal, either the full 9th Circuit or the Supreme Court. And even if the cases were allowed to go forward, they concern past surveillance. The activities alleged are probably legal under an unnecessarily sweeping revision of the Foreign Intelligence Surveillance Act that was railroaded to enactment before Congress' summer recess.

That so-called FISA fix, which expires in six months, allows intelligence agencies to monitor telephone calls and e-mails without a court order as long as one party is reasonably believed to be abroad. The fix was inspired by a decision of the FISA court -- a decision that should be made public -- that reportedly required the government to obtain a court order to monitor communications between people abroad that were routed through the United States. But it goes much further than closing that loophole.

With speculation that the fix might also make it easier for investigators to see the paper records of Americans, it is vital that Democratic leaders keep their promise to revisit the legislation later this year and give courts a greater role in monitoring surveillance that captures a significant number of conversations involving people in the United States. In the process, they should make it harder for the government to escape judicial scrutiny by mouthing the "state secrets" mantra.

The American Bar Assn. has proposed legislation that would limit the state secrets privilege to cases in which "the court finds, based on specific facts, that the government has reasonably determined that disclosure of the evidence would be significantly detrimental or injurious to the national defense or to cause substantial injury to the diplomatic relations of the United States." That is preferable to a system in which courts must, as Pregerson put it, bow to the executive branch.

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