Congress and the White House are not as far apart on rewriting an eavesdropping bill as they seem — or at least they shouldn’t be.
It is clear that the government needs a criminal and terrorism surveillance authority that’s flexible, fast and capable of handling rapid technological change. The administration would have unfettered authority to eavesdrop on foreign targets and communications but it seems clear that if there is an American involved the Constitution requires some kind of warrant, preferably one judicially approved.
Critics complain that warrants involve too much time and red tape but this seems an administrative problem, and if it is truly a problem, it is up to congressional oversight to solve. And in a free society, privacy protections against government snooping are hardly “red tape.”
President Bush is insisting on retroactive legal immunity from lawsuits for telecommunications companies that secretly cooperated with the government in warrantless wiretapping of American citizens. The House Democratic leadership and the senior Republican on the Senate Judiciary Committee say they will consider some form of immunity but first they want to know exactly what it is the companies did that they need immunity from.
This request seems only fair, but the administration is balking, one suspects because it doesn’t want Congress to learn the vast size and scope of its eavesdropping. Two years ago USA Today reported that the National Security Agency had surreptitiously gathered the phone records of tens of millions of Americans. And Verizon has just disclosed, according to The Washington Post, that it provided phone records to the authorities without court orders “hundreds of times” since 2005.
The White House and Congress couldn’t agree on a rewrite of the 1978 Foreign Intelligence Surveillance Act once before so Congress extended the law only until January, still time enough to reach a better balance between privacy and security and to insure meaningful judicial and legislative oversight.