Rein in bugging without warrants

THE ISSUE The National Security Agency has been eavesdropping without warrants on Americans and others in the United States.

SOON after the Sept. 11, 2001, attack on America, Congress enacted the USA Patriot Act to expand the government's authority to combat terrorism, but disclosures by The New York Times indicate that the Bush administration has not been constrained by that law. Congress needs to rein in what looks to be an uncontrollable intelligence operation.

The National Security Agency has ignored the act's prohibition against eavesdropping in the United States without court-approved warrants, monitoring international telephone calls and e-mail messages of hundreds, perhaps thousands, of people inside the United States in the last four years, according to the Times. At any given time, the agency has illegally eavesdropped on up to 500 people, including American citizens.

President Bush authorized the "special collection program" in a secret order in 2002, informing leaders of congressional intelligence committees. Traditionally, the FBI has engaged in domestic eavesdropping after obtaining warrants from the secretive Foreign Intelligence Surveillance Court. NSA spying inside U.S. borders had been confined to foreign embassies and missions.

The Patriot Act requires law enforcement and intelligence agencies to seek a warrant from the secret court when they want to eavesdrop within the United States. The court approves such warrants after a showing of probable cause that the subject may be "an agent of a foreign power," including international terrorist groups.

In a 2002 brief in an unrelated case, the Justice Department asserted that "the Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority." Under that flawed reasoning, limits imposed by the Patriot Act are meaningless.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has called the activity "inappropriate" and said he will conduct hearings early next year. Congress should insist that domestic eavesdropping without warrants be halted.