The U.S. Senate this week takes up a bill that would revise the rules on the government’s wiretap powers and essentially give retroactive legal immunity to telecommunications companies that helped the Bush administration’s post-Sept. 11 spy efforts.
It’s an imperfect bill, and there are elements that we take issue with, but it also includes strong new oversight powers to make sure this administration and those in the future stay on the straight and narrow when it comes to spying.
We think the Senate should pass it.
The most problematic part of the bill is the immunity it would give to the telecommunication companies that are the subject of some 40 lawsuits over privacy concerns.
The overhaul to the Foreign Intelligence Surveillance Act, or FISA, would provide for lawsuit dismissals if federal judges find that the telecoms’ cooperation came after the companies received legitimate administration requests for help. We have questioned the call for immunity in the past, not because we think the telecoms ought to be financially punished, but because we believe the lawsuits are a way to find out just what the Bush administration did in those years after 9/11.
The president claimed he had the constitutional authority to wiretap in the name of national security without obtaining warrants from a special, secret court established by FISA in 1978 for just such sensitive matters.
The New York Times exposed the existence of the warrantless wiretap program in 2005 and laid bare the administration’s end run around the FISA court.
But there is still much that is unknown about the width and breadth of the spying. The proposed legislation would kill the pending lawsuits and shut down the discovery that could flesh out the activity. The legislation would not preclude lawsuits directly against the government, but those come with high burdens of proof.
On the up side, the FISA overhaul would include important new oversight procedures.
The inspectors general from the Justice Department and intelligence agencies would have the responsibility of annually reviewing the surveillance programs. In particular, the oversight would include looking at how domestic spying is conducted and whether civil liberties are respected.
FISA was designed to allow the U.S. government to gather intelligence information communicated by foreign powers or their agents. But sometimes, the government contends, that surveillance could include intercepting communications by Americans with suspected ties to terrorists.
Furthermore, Congress would get increased oversight power. And perhaps most important, the bill says the intelligence rules would be the “exclusive” means by which the administration could conduct surveillance activities in cases of national security. We take that to mean no more warrantless programs.
In August, some of the administration’s warrants to monitor suspected terrorist communications will expire. While that is not an insurmountable problem, we also see how such a situation could be distorted and inappropriately used as an issue in the current presidential campaign.
A bipartisan group from the House last week approved the revamped FISA legislation. We hope the Senate concurs.
