EAVESDROPPING OVERSIGHT

When Congress was poised to let a controversial wiretapping law expire in February, the White House predicted death and destruction if the rules, which allowed eavesdropping without a warrant, weren’t extended. Congress let the Protect America Act expire and used the additional time to write compromise legislation, which though improved still contains troubling provisions.

The bill passed by the House last week reiterates that the Foreign Intelligence Surveillance Court is the sole entity with authority to authorize electronic monitoring. This stops the White House from creating its own eavesdropping system. But it also allows bulk approvals rather than individual warrants and allows surveillance for a week while awaiting court approval.

The Foreign Intelligence Surveillance Act of 1978 set up a special court to consider wiretapping requests. Obtaining FISA court approval does not appear too difficult since the court has rejected, in part, only one application since 2005.

Still, the White House said this process was too slow and sought ways around it. It initially did this by having the National Security Agency eavesdropping on phone calls and e-mails between the United States and other countries without warrants. When this was revealed by press reports in 2005, the Bush administration sought congressional permission to continue the electronic monitoring with as little oversight as possible. It also has long sought immunity from lawsuits for the communications companies that participated in the eavesdropping.

Days before its 2007 summer recess, Congress passed the Protect America Act, which allowed monitoring of electronic communications by people in the United States without a court’s order or oversight, so long as the target of such monitoring was “reasonably believed” to be outside the U.S. Surveillance could be authorized by the director of national intelligence and the attorney general, with the FISA court relegated to examining whether the government’s guidelines for targeting overseas suspects were appropriate.

The bill passed by the House undoes some of this damage, but could be improved by requiring individual warrants and by more clearly limiting when surveillance can begin without FISA court approval.

Reps. Tom Allen and Mike Michaud voted against the bill, largely because of concerns over immunity. The House compromise, while not perfect, allows federal courts to decide if immunity should be granted. Companies that show they received assurances from the White House that the work was legal would be protected. A Senate bill which Sens. Olympia Snowe and Susan Collins support still calls for total immunity. This is premature and tramples on states’ abilities to determine what the companies did and whether state or federal laws were broken.

More oversight of electronic eavesdropping is needed. The House bill moves in the right direction. With some fixes it can assure Americans’ privacy is protected without impeding necessary intelligence gathering.