Wiser intelligence

WHEN THE BUSH White House proposes changing a law that protects Americans from unchecked electronic surveillance, civil libertarian knees begin to jerk. And understandably so.

This, after all, is the administration that for five years eavesdropped on the international phone calls and e-mails of U.S. citizens suspected of ties to foreign terrorists without seeking the approval of the special court that was created to oversee such surveillance. The administration complained that the oversight was too restricting, only to discover this year that it could operate within the law after all.

And even as the administration asks Congress to expand its leeway under the 1978 Foreign Intelligence Surveillance Act, the White House continues to insist on the president’s inherent power to disregard even his preferred version of that law. No wonder J. Michael McConnell, the director of national intelligence, received a skeptical reception from Democrats on the Senate Intelligence Committee when he testified last week in favor of “modernizing” FISA.

But some of what McConnell requested makes sense. The threat of domestic terrorist attack does require greater flexibility, as do changes in technology. FISA was enacted at a time when most international communications traveled by radio or satellite and thus were outside the law’s regulation of wire transmissions; today, those same communications move along fiber-optic cables. Likewise, a court order should not be required just because a phone call or e-mail from one foreign location to another happens to pass through the United States.

The problem is that these sensible adjustments are weighed down by two kinds of baggage: the administration’s past casualness about privacy, and language in the “modernization” bill that seems to give past and future eavesdropping on Americans too much benefit of the doubt.

For example, the bill defines “electronic surveillance” governed by FISA as the surveillance of “a particular known person” in the U.S., which seems to exempt the monitoring and recording of communications between a foreigner and multiple Americans. And it would unjustifiably immunize from lawsuits companies that provided the National Security Agency with private records between 2001 and the enactment of this legislation.

As it must do in other areas, the administration will have to negotiate with a suspicious, Democratic-controlled Congress to effect changes in FISA. Part of that bargain should be frankness about why it flouted the law for five years.

Going forward, the administration should consider legislation -- such as that introduced by Sens. Dianne Feinstein (D-Calif.) and Arlen Specter (R-Pa.) -- that would give the government greater maneuverability under FISA while reaffirming the law as the “exclusive means” for gathering foreign intelligence when that process could compromise the privacy of Americans.