Congress should put pressure on spying

THE ISSUE A federal appeals court has rejected a challenge to the government's right to conduct surveillance without warrants.

PRESIDENT Bush has won court approval of the warrantless search program of the National Security Agency, even though political pressure forced him to submit it to supervision by a secret court. That pressure should continue to keep him from resurrecting the unconstitutional surveillance.

Two members of a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati did not rule that the program was constitutional but denied the plaintiffs in the case standing to sue. They could not prove that they were among the agency's targets.

The New York Times reported in December 2005 that the agency was conducting surveillance on suspected terrorists, ignoring the Constitution's prohibition against eavesdropping in the United States without a court-approved warrant. The Foreign Intelligence Surveillance Act created a court to issue such warrants, but the intelligence agency chose to proceed without warrants.

In January, not long after a district judge struck down the program and the Democrats had taken control of Congress, the agency began asking for warrants from the secret court.

If judges' rulings in the case are an indication, the Supreme Court is not likely to topple the appellate court's decision. The district judge who ruled it to be unconstitutional was nominated by President Jimmy Carter. Nominees by President Bush and his father reversed that ruling, against a dissent by judge nominated by President Bill Clinton. The high court probably will not even allow a further appeal to be heard.

That leaves Congress to provide greater oversight of the conduct of intelligence agencies and be prepared to take corrective action through legislation.