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Time for Legislating

President Bush should allow Congress to fine-tune legislation on surveillance.

February 14, 2008

CONGRESS has been struggling for months to resolve disagreements over how to overhaul the Foreign Intelligence Surveillance Act and whether to grant immunity to communications companies that cooperated in the administration's warrantless wiretapping. The Senate and House have now passed competing versions of a measure that would bring such surveillance under the authority of the special court that oversees the administration of the FISA law, as it should be. There are differences between the two measures when it comes to both the role of the court and, more starkly, whether to give "amnesty," as opponents call it, to the telecommunications providers. House Democrats lost a bid yesterday for a three-week extension to hash out those issues, during which time the even more permissive existing law, the Protect America Act, would remain in place. But President Bush, having signed one, 15-day extension, balked at a second.

"The time for debate is over. I will not accept any temporary extension," Mr. Bush said yesterday. He insisted that the House pass the Senate measure "immediately" and warned that its "failure to pass the bipartisan Senate bill would jeopardize the security of our citizens." We can understand the administration's desire to have the rules settled once and for all and its frustration with the pace of the legislative process. We are sympathetic with the desire to provide protection to companies that complied with government requests for assistance -- that were, as Senate intelligence committee Chairman John D. Rockefeller IV (D-W.Va.) put it, "willing to help the government based on assurances of legality from the highest levels of government."

But Mr. Bush's pass-it-now-or-the-terrorists-will-win rhetoric is overheated fearmongering. He should agree to a second extension, which would allow intelligence agencies to operate under the existing law. The fact is that even if the law is permitted to expire Saturday, as scheduled, the orders under which surveillance is being conducted would remain in place. Any new orders could be issued by the FISA court, and without the backlog that had slowed the court's operations before the Protect America Act was passed last August. Allowing legislators a few more weeks to try to resolve differences presents no evident threat to U.S. security. A few more weeks could even produce a better bill.

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