Wiretap bill surrenders too much to presidential authority

THE ISSUE Legislators are contemplating investigations while a proposal by a U.S. senator would ease restrictions on domestic surveillance.

FRUSTRATED Hawaii lawmakers attempting to determine if telecommunications companies violated state privacy laws likely will encounter the thick walls of secrecy surrounding the Bush administration's domestic wiretapping program.

Nevertheless, they and other state officials should insist that the administration respect Americans' fundamental rights and conduct necessary surveillance through the legal means it already has available.

Though the administration contends that the president has broad wartime authority from Congress to wage war against terrorism, its agreement to compromise legislation indicates apprehension about submitting its assertion to a federal court.

Instead, the legislation would allow the administration the option to seek blanket approval of a special surveillance court for the eavesdropping program as well as any others it might be operating, undermining the role of federal courts in determining constitutional issues.

The bill that was brokered by Pennsylvania Sen. Arlen Specter last week should be rejected. The measure would reverse a requirement of the Foreign Intelligence Surveillance Act that the administration, citing supportive evidence, seek individual warrants to listen in on phone calls and to inspect e-mail of suspected terrorists.

It would disallow citizens who are challenging the program from being heard in federal court, transferring their cases -- and any others contesting any electronic surveillance programs -- to the special court where they can be dismissed "for any reason."

The bill would eliminate effective oversight of executive actions by the other branches of government and while no one is suggesting that the president would abuse his power, the checks ensure restraint and accountability.

FISA already provides the administration with the legal mechanism for its program and Congress has been willing to accommodate changes to streamline procedures. Specter's bill, however, cedes too much, leaving compliance to presidential choice.

In the context of the national debate, Hawaii's concerns about possible violations of state privacy laws might seem provincial. They are not.

Legislators want to determine if phone and other telecommunications companies voluntarily turned over customer information to the National Security Agency, which could violate state law, or if they were ordered to do so. The companies, citing pending lawsuits, have been circumspect about describing their actions and did not appear, as requested, at a legislative briefing last week.

Lawmakers aren't sure if they will convene hearings and issue subpoenas to get the information, which the Public Utilities Commission also is seeking in its own investigation.

Their attempts might prove futile in the face of national security issues, but both are obligated to question authority on behalf of Hawaii's citizens.