What others say: Renewing FISA

The following editorial appeared recently in the St. Louis Post-Dispatch:

A week ago, while America's leaders dithered about the future of the economy, the Senate killed some time by passing a five-year extension of the 2008 amendments to the Foreign Intelligence Surveillance Act.

To the extent there was any good news in this, it was that the 73-23 vote cut across partisan lines. President Barack Obama signed it on Monday.

That means for the next five years, America's intelligence agencies will be able, without first obtaining a judicial warrant, to monitor international phone calls and emails in and out of the country by non-U.S. citizens.

The word "monitor" doesn't quite cover what the National Security Agency is doing. Using supercomputers programmed to search for certain key words, names or phone numbers, NSA scoops up communications like a giant vacuum sweeper. If a U.S. citizen calls a friend in Pakistan and describes how he got bombed at a New Year's Eve party, chances are the NSA's algorithms will flag that as suspicious.

And because this is two-way communication, a U.S. citizen innocently and unknowingly has placed his name on a list that could bring an FBI agent to his door.

This practice was begun secretly during the Bush administration. In 2005, The New York Times disclosed it. The 2008 amendments to the FISA act — which required intelligence agencies to obtain a warrant from a special court before monitoring the communications of Americans — essentially legalized the practice.

The 2008 amendments said U.S. citizens and permanent residents could not be targeted without a court order. Intelligence officials have claimed that the government is not abusing the law by doing "accidental" monitoring of Americans. Nor, they say, is the government monitoring domestic communications. This is only slightly reassuring; the information needed to verify those claims is classified.

Congress apparently is willing to take the word of its intelligence agencies. Whatever happened to "trust, but verify"?

The Senate — having done nothing with the FISA extensions bill since it was passed by the House in September — rushed through passage last week without considering amendments that could have alleviated concerns about the practice. The excuse was that debating such amendments, and sending an amended bill back to the House, couldn't be completed before Congress adjourns.

One measure would have made it illegal to target, without a warrant, the communications of U.S. citizens or legal residents. Another amendment would have required disclosure to Congress of how many U.S. citizens inadvertently got scooped up by the vacuum. Neither could get a vote.

Americans don't seem to care very much about this issue. To fight terrorists, real or imagined, Congress and the president are willing to massage the Constitution. And by passing it in the week between Christmas and New Year's with attention focused on the fiscal cliff, the Senate made sure that fewer people than usual would hear about it. Your government at work.