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Tue Aug 7, 12:22 AM ET
Few would argue against giving the government the powers necessary to fight the war on terrorism. Suspects need to be identified and monitored. Proven threats to the nation need to be removed. But surely any sensible person ¡ª conservative or liberal ¡ª should see that whatever powers are granted to cope with a crisis should be crafted carefully and removed once the crisis ends.
If there is any redeeming feature of the excessively invasive eavesdropping law that Congress passed last week and President Bush signed Sunday, it is a "sunset" provision that makes all the bill's controversial provisions expire, unless Congress and the president agree to renew them.
Depending on whether the Bush administration exploits a loophole in the bill, they lapse either in January 2008 or a year later, but one way or the other they do expire ¡ª a safeguard that has often been lacking in such measures.
Until that happens, the attorney general and the director of national intelligence will decide without any court review when it's OK to monitor certain phone calls, e-mails, faxes and text messages between foreigners and U.S. residents. Such surveillance can go on for a year. Left on the books long enough, this is not just an invitation to abuse; history suggests it is a guarantee.
In fact, the law itself is evidence of the tendency of those in power to overreach. The Foreign Intelligence Surveillance Act, which Congress amended, long ago provided means to monitor terrorists. It set up a secret court to grant warrants quickly ¡ª even retroactively ¡ª for legitimate surveillance, and that system has been widely viewed as effective. Since 9/11, demands on the system have increased, but rather than adopt the obvious solution ¡ª provide more resources for the court and those who seek its warrants ¡ª the new law just short-circuited the process.
The law's sunset provision will at least require that regrettable decision to be reviewed and re-approved, by which time reason may prevail. A similar provision forced Congress to revisit the 2001 USA Patriot Act in 2005 and revise some of the enormous powers it gave the executive branch in the name of fighting terrorism.
Unfortunately, that exercise ended with Congress making permanent 14 of the Patriot Act's main provisions and providing new, four-year sunset requirements for just two. The risk of granting open-ended authority with little supervision became painfully clear when an audit by the Justice Department's inspector general found that the FBI had routinely abused its authority under the Patriot Act to use "national security letters" to get phone, Internet and financial records.
It's dangerous to give any administration permanent powers to fight a temporary war, even one that could last as long as the one against Islamic extremism. It's just as dangerous to trust an administration to police itself without court supervision.
A skittish Congress allowed itself to be stampeded last week into granting the president unfettered surveillance power. When it returns to Washington, it should do what it can to make sure that the sun goes down on this flawed measure.
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