First job: FISA

When Congress returns this week from its Easter recess, it should promptly reconcile House and Senate bills to protect the privacy of Americans caught up in electronic eavesdropping on suspected foreign terrorists. The stakes are high, the hour is late, and the two bills are strikingly similar in their most important provisions. But a compromise will require leaders of both parties in Congress -- and President Bush -- to put progress above political point-scoring.

After 9/11, President Bush authorized the National Security Agency to monitor -- without a court order -- telephone conversations and e-mails between suspected foreign terrorists and individuals in this country. The secret Terrorist Surveillance Program flouted the 1978 Foreign Intelligence Surveillance Act, or FISA, which required a special federal court to approve electronic surveillance of Americans.

It was only after the New York Times reported the existence of the program -- and Congress expressed outrage -- that the administration reluctantly accepted judicial oversight of the program. But soon the administration was arguing, plausibly, that advances in technology had created a situation in which a court order would be necessary to listen in on communications between two foreign locations that were routed through the U.S.

Members of both parties in Congress were willing to close this loophole last summer, but the administration seized on the so-called foreign-to-foreign problem to press for greater leeway in monitoring conversations that might involve innocent Americans. Democrats, particularly in the House, pushed back, and the result was a stopgap measure, the Protect America Act, which has since expired.

The lapsing of that legislation was regrettable, though not the dire threat to national security portrayed by the Bush administration. Intelligence agencies have been able to continue surveillance operations because the original authorizations last for a year. Even so, Congress should move quickly so that future orders can be approved expeditiously.

Legislation passed by both houses would authorize the surveillance of foreign terrorists while allowing the FISA court to monitor the process to ensure that the invasion of privacy of Americans is minimized. The House bill is more protective of privacy rights than the Senate version, and it makes it harder for intelligence agencies to use procedures that the court has disapproved. But the similarities overshadow the differences.

Consensus has foundered on a side issue: whether the legislation should confer legal immunity on telecommunications firms that cooperated with the Terrorist Surveillance Program before its existence was made public. The Senate bill includes immunity; the House bill does not, although it offers companies that might be sued the opportunity to override a “state secrets” privilege that would make it difficult for them to defend themselves.

Both House Democrats and Republican supporters of the administration’s position have hyped the importance of the immunity issue, with Democrats claiming that civil lawsuits against telecoms will pry loose information about the surveillance program and Republicans offensively suggesting that Democrats favor lawsuits against telecoms as a way of paying off their trial lawyer supporters.

Civil lawsuits are not the only or the best way to ventilate information about the program, about which Congress already knows much more than it did a few years ago. A better option is proposed in the new House bill: a congressional commission to investigate the genesis of the secret NSA program. A House-Senate compromise that included both immunity and a commission would be hard for Bush to veto. More important, it would put what began as a lawless program on a sound legal footing.