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Jewish World Review March 10, 2006 / 10 Adar, 5766 Common sense on the NSA? By Rich Lowry http://www.JewishWorldReview.com | Every public-opinion poll, no matter who is conducting it or what the methodology is, finds that Congress is held in low repute. And why not? Congress is the backseat driver of American politics. Whenever something goes wrong   —   whether a terror attack, intelligence failure or flood   —   Congress is there to assign blame, as long as it doesn't have to shoulder any of the blame itself. Even when it comes to its own corruption, Congress loves lobbying reform, as long as it doesn't have to do anything drastic about its own spending or privately financed travel. So it is a pleasant surprise when Congress takes an issue ripe for opportunism and bad faith and forges a judicious compromise over it. That is what appears to be happening in a deal cut between the White House and the Senate Intelligence Committee over the National Security Agency program of warrantless surveillance. The bargain would avoid conducting hearings into the program and give it congressional approval, but bring it under more thorough congressional oversight. Senate Democrats initially howled, but have since calmed down. Can responsibility be breaking out on Capitol Hill? The deal would create a bipartisan, seven-member "terrorist surveillance subcommittee" to be fully briefed and kept up to date on the NSA program. This will represent an unprecedented level of congressional involvement in the executive branch's intelligence activities. Congress wants to hear justifications for each and every act of warrantless surveillance. Usually, congressional oversight means merely after-the-fact finger-pointing. In this case, it should mean that Congress is fully vested in the NSA program and committed to helping make it work. The deal would also require the administration to obtain wiretapping warrants from the Foreign Intelligence Surveillance Act court   —   which has been bypassed by the NSA program   —   whenever possible. This is reasonable. In circumstances where getting a FISA warrant is possible   —   when it can be established that there is probable cause to believe a wiretapping target is a terrorist, and there is time for the extensive approvals necessary   —   of course the administration should get a warrant. Under the deal, the administration could conduct surveillance for 45 days without FISA approval, as long as one person on the monitored communication is outside the United States and is a suspected member of a terrorist group   —   exactly what appear to be the circumstances of the bulk of NSA wiretaps. This gives the program a retroactive blessing. After 45 days, the attorney general would have to tell the newly created sub-committee why getting a FISA order wasn't possible. This shouldn't be a problem if there have been good reasons for keeping the NSA program out from under FISA, as there surely have been. Given what might have been in the offing from Congress, the deal looks Solomonic in comparison. Congress makes much of being a coequal branch of government with the executive, but then likes to offload its responsibilities onto the courts. Sen. Arlen Specter, R-Pa., wanted to extend the reach of the judiciary branch even further into national-security matters by having the FISA court effectively conduct oversight of the program. But oversight is not the role of the courts, but of Congress. The administration is quietly pleased with the deal. It avoided a full-fledged congressional inquiry, with all the grandstanding and politicized leaks it inevitably would have entailed; it will have to brief select members of Congress regularly, but members who have been extensively briefed on the program to this point have tended to support it; the administration will have to review the program with the subcommittee every 45 days, but this isn't a hardship, since it already conducts this kind of review internally. Of course, there is always a chance Congress will disgrace itself anew. If it obtains detailed knowledge of the NSA program and proceeds to hand it over to reporters, it will have demonstrated its untrustworthiness and lack of seriousness as an institution. And those poll numbers will sink lower, if that's possible. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. Comment by clicking here. Rich Lowry Archives © 2006 King Features Syndicate

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