The real FISA problem

The entire premise of secret electronic surveillance seems shaky, judge or no
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EDITORIAL It's no secret that the nation's telecommunications companies have been spying on Americans without any sort of legal warrants. The New York Times broke that story in December 2005 — and not long after that a San Francisco man who had worked for AT&T came forward to describe how private calls were routed to a secret building on Folsom Street where the feds could listen in.

The courts are sorting out whether that was a violation of the Foreign Intelligence Surveillance Act of 1978, which contains at least some limited provisions protecting privacy. But in the meantime, the George W. Bush administration wants to update FISA — and include retroactive immunity for the telecom companies. Even if AT&T, Verizon, and others broke the law by allowing federal agents to snoop on their customers, Bush says, they should pay no price.

The American Civil Liberties Union, the Electronic Frontier Foundation, and other public interest groups have been pushing to block immunity; unfortunately, the Senate (with California's Dianne Feinstein on the wrong side) has gone along with what Bush wants. The House has a better bill, and the two are headed for a conference committee. Activists are demanding Speaker Nancy Pelosi stand firm and refuse to allow passage of any bill that protects the phone companies from past misdeeds.

That's the right approach, and we agree. But we have to ask: why are the Democrats so willing to support this law in the first place?

FISA was created in response to the Counter Intelligence Program abuses of the 1960s, and it provides some modest protection for citizens. But it created a special secret court that could authorize wiretaps with very little oversight. The government's warrant requests have almost never been rejected. Sometimes the court has issued them after the fact, retroactively approving wiretaps that have been done with no judicial oversight at all. The current version of FISA is better than what Bush wants — but it could be vastly improved.

We've never been fans of secret legal proceedings and special, shadowy courts that operate as an arm of law enforcement. The entire premise of FISA seems awfully shaky: if the FBI or the National Security Agency needs to tap someone's phone, why can't it go before a federal judge, using the normal procedures for wiretap and search warrant authorizations, just like everyone else? Is there any evidence that the federal courts are unable to handle that job or that the judiciary is too unwilling to allow the government to use all of the tools it needs to track terrorists?

Is the United States any safer with the authority to spy on Americans almost entirely removed from the oversight process established by the Constitution?

The real threat here is the growing one to privacy and civil liberties — and the best way to address it is to simply refuse to reauthorize FISA, start from scratch, hold hearings, get public testimony, and rewrite the law in a way that protects the public, not just the FBI, the NSA, and telecom companies. That's what Pelosi ought to be pushing for.