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It hears us

After too much resistance, the Bush administration now seems willing to legalize its domestic spying program.

February 06, 2007

SLOWLY BUT surely, the National Security Agency's eavesdropping on Americans suspected of ties with foreign terrorists is being brought under the rule of law. But the Bush administration still owes not just Congress but the country some straight answers about the program.

Last week, Atty. Gen. Alberto R. Gonzales agreed to provide Congress details of the program's new arrangement for being monitored by a special court set up by the 1978 Foreign Intelligence Surveillance Act. Gonzales' latest concession comes a few weeks after the administration abruptly reversed itself and said that it could, after all, conduct surveillance of international calls and e-mails under the court's supervision.

But the administration has still refused to spell out whether the court will approve individual requests for wiretapping authority -- as it traditionally has done -- or just sign off on more general requests. This is the crucial question.

A Justice Department official said last month that the new court orders are not "cookie-cutter" and were more specific than an "advisory opinion" on the overall program. That sounds encouraging, but the public deserves to know whether the administration is providing the court with probable cause about specific U.S. citizens.

Perhaps the answer to that question is in the documents Gonzales is turning over to Congress. If so, it should be shared with the public.

No one suggests that investigators should publicize the names or locations of people under suspicion or the technology being used to capture their communications. But it shouldn't be a state secret whether the NSA is getting case-by-case approval for surveillance of Americans or engaging in some less discriminate "data mining."

Two realities strengthen the hand of Sen. Arlen Specter (R-Pa.) and other lawmakers who want to bring oversight to the program: the new Democratic-controlled Congress and a lawsuit that reached a federal appeals court in Cincinnati last week. Sen. Patrick J. Leahy (D-Vt.), who succeeded Specter as chairman of the Judiciary Committee, is threatening new legislation if the documents suggest the administration hasn't achieved the "proper balance" between privacy and security. Last week, two of three judges on a panel of the U.S. 6th Circuit Court of Appeals in Cincinnati reacted skeptically to the suggestion that a legal challenge to the original program was moot.

The attacks of 9/11 changed a lot of things in the United States -- but not the meaning of the 4th Amendment or the need for congressional oversight of the executive branch. The administration can show its respect for these principles by being more forthcoming with the American people about its activities.

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