Outside editorial: Better tapping

Posted: Tuesday, June 24, 2008

Here's a ringing endorsement: After defending the key provisions of a bipartisan measure to monitor foreign terrorists, House Speaker Nancy Pelosi, D-Calif., said Friday, "I'm not asking anyone to vote for this bill, I'm just telling you why I was." Her ambivalence reflected her colleagues' mixed feelings about the Bush administration's controversial efforts to tap telephone calls and e-mails into and out of the United States.

Critics of the bill (HR 6304) complain that it would give the executive branch broad license to spy on U.S. residents without a warrant. Any phone call or e-mail with targets in other countries could be intercepted without previous court approval if the administration claimed it necessary in an emergency. And if the administration should overstep even these permissive boundaries, telecommunications companies would be all but immune from liability for the illegal taps.

But as Pelosi pointed out before the House voted overwhelmingly in favor of the bill, opponents are holding out for something that almost certainly isn't going to happen. Lawmakers are too concerned about al-Qaida attacks to roll back surveillance programs aimed at potentially hostile foreigners, even if those programs cast a net over Americans' communications.

The bill takes a more realistic "trust, but verify" approach to the interception of international calls or e-mails. It would let the administration authorize the monitoring but would require the secretive Foreign Intelligence Surveillance Court to approve and enforce protections for U.S. residents. The bill would bar surveillance until those procedures were approved except in loosely defined "exigent circumstances," in which case the administration would have to seek approval within a week. It also would have four inspectors general investigate the current surveillance program. Most important, it would stop the White House from setting its own rules for surveillance when Americans are involved.

That said, we'd like to see the Senate try to improve the bill. In particular, it needs better safeguards against warrantless wiretaps on foreign suspects being used as a pretext to target U.S. residents. Also, the courts should be allowed to decide whether telecommunications companies previously violated the law by cooperating with surveillance requests.

Nevertheless, the House compromise represents a major step forward from the Senate's last effort, which included fewer restrictions on surveillance. The House measure won't impede legitimate intelligence operations, and it brings oversight to a program that has operated for too long with too little of it. We are not yet clear of the mess the Bush administration created with its disregard for privacy and personal liberty in this area, but the bill moves us closer to that overdue day.

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