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Tap dance

Congress is closing in on legislation defining how the government can eavesdrop on suspected terrorists.

May 28, 2008

The Bush administration's secret, embattled Terrorist Surveillance Program may soon get a new lease on life. Lawmakers had let its authorization lapse in February, unable to reconcile differences between the House-passed bill, HR 3773, and the more permissive, administration-backed version approved by the Senate. Foremost among these were how to protect Americans from warrantless surveillance and whether to hold phone companies accountable for illegal wiretaps already done at the administration's behest. Last week, though, Sen. Christopher "Kit" Bond (R-Mo.), the top Republican on the Senate Intelligence Committee, floated a proposal that embraced some principles from the House bill, and the White House gave some ground on the question of phone company immunity.

Not surprisingly, given the rhetoric that has marked this long-running debate, critics were quick to dismiss the concessions as meaningless. And they're right, at least about the immunity provisions. But outlines are emerging for a compromise that would give Americans who communicate with foreigners significantly more protection against warrantless eavesdropping than they had under the previous law.

In particular, Bond's proposal embraced four important principles from the House bill. First, it included a more stringent statement that the 1978 Foreign Intelligence Surveillance Act, or FISA, regulates any eavesdropping on suspected foreign terrorists or other foreign agents inside U.S. borders. Second, it agreed that not only would surveillance programs need to minimize the data collected from U.S. residents, but the FISA court also would have to approve the minimization procedures in advance. It provided an exception in the case of emergencies, in which case the court review would take place within a few weeks. Third, it endorsed a review of the Terrorist Surveillance Program by the Justice Department's inspector general. And fourth, it agreed to have a court examine the phone companies' cooperation with that program.

Negotiators have more work to do because the details of the provisions don't always live up to their promise. For example, the exception for emergency eavesdropping is breathtakingly broad. And on the immunity issue, the phone companies would be given a pass if the government merely certified that its wiretapping request was lawful, ignoring the more important question of whether the request itself complied with the 1978 act. Yet both sides need a compromise to bring FISA into line with modern technology. The act needs to be updated to restore the government's freedom to monitor suspects outside the U.S. and also protect Americans' liberty from the threat posed by today's far more powerful monitoring techniques.

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