The House, in a rush to get out of town and fearful of being branded as soft on terrorism, approved legislation on Saturday that gives the Bush administration new authority to engage in warrantless surveillance. The Senate approved the legislation on Friday.

The White House began a full-court press for the legislation last week after the secret court charged with reviewing foreign surveillance reportedly limited eavesdropping on communications between two foreign parties that pass through the United States. The White House and House Minority Leader John Boehner charged that Congress would be putting Americans in danger if it didn't pass legislation overruling the decision before the August recess.

But the hastily-enacted legislation, dubbed the Protect America Act, does more than permit the interception of foreign-to-foreign communications. It permits warrantless surveillance "directed at a person reasonably believed to be located outside of the United States." There is no language specifically restricting surveillance activities to communications originating outside of the United States.

No meaningful oversight

Nor will the process have meaningful judicial oversight. Before undertaking surveillance activities, intelligence officials would need to obtain a certification from the Attorney General and the Director of National Intelligence—both subordinates of the president—that there were "reasonable procedures" in place for ensuring that the eavesdropping "concerns" persons located outside the United States and that the foreign intelligence is a "significant purpose" of the surveillance activities. That certification would only be reviewed after the fact, and only to determine if the procedures were, in fact, "reasonable." A single certification could approve a broad surveillance program covering numerous individuals, and no judge would review the list of individual targets.

Moreover, the requirement that surveillance "concern" non-U.S. persons could plausibly permit spying on the relatives, friends, and business associates of a foreign target. Indeed, the administration might argue that the only way to obtain all information regarding foreign targets is to conduct dragnet surveillance of American communications and sift through them to find relevant information.

The legislation empowers the administration to "direct" individuals to "provide the government with all information, facilities, and assistance necessary" to carry out foreign surveillance. These quasi-subpoenas would not be subject to judicial review before they were issued. The targets of such orders—who will typically be telecom company executives, not terrorism suspects—have the option of appealing the order to the FISA court, but given the broad scope of surveillance activities authorized by the legislation, it seems unlikely that such challenges would succeed. Moreover, the legislation offers legal immunity to those who comply with such orders, so telecom providers will have little incentive to resist them.

A couple of small bright spots

The legislation has two bright spots from a civil liberties perspective. First, as the president noted in his statement on the legislation, it does not provide "meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001"—in plain English, it doesn't give telecommunications carriers a free pass for any laws they might have broken over the last six years. That means that the legislation is unlikely to block lawsuits now in progress against telecom companies for violating their customers' privacy.

Second, the provisions sunset after six months, giving Congress the opportunity to reconsider the legislation later in the year. Yet even the sunset provision comes with a loophole: foreign surveillance that had been approved before the sunset date would remain in effect until expiration, which could be as long as a year. With less than 18 months remaining in his term, President Bush will have the opportunity to put in place surveillance programs that will remain in effect until the day he leaves office.

The legislation was opposed by a majority of Democrats, and Speaker Pelosi has vowed to revisit the legislation when Congress reconvenes in September. We hope the Democrats will show more backbone the second time around, but you'll forgive us if we don't hold our breaths.