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The foreign intelligence Surveillance Act of 1978 (FISA) spells out procedures for the surveillance and collection of “foreign intelligence information.” Section 1822 allows for warrantless eavesdropping for up to a year if the president certifies that such surveillance is directed at a foreign power, or the agent of one, and that there is minimal likelihood U.S. citizens will be monitored. In light of the attacks of Sept. 11, 2001, and because of changing technology, FISA needed revisions, but, initially, President Bush decided to ignore rather than seek to amend the law. Beginning in 2002, he secretly authorized the National Security Agency to eavesdrop on international phone calls and e-mail messages of thousands of Americans. The NSA persuaded several telecommunications companies to assist it in this warrantless process, claiming that it was legal. But under the clear provisions of FISA and the Fourth Amendment, that appears not to be the case. U.S. citizens who have evidence that their communications were monitored sued some telecoms. The government sought to intervene and dismiss, claiming that the program, and reasons for deeming it legal, are subject to the state secrets privilege. The president, most recently in a Feb. 28 news conference, has urged Congress to include an immunity provision for these companies in pending legislation to amend FISA. The Senate’s version does, but the House’s does not. If the telecoms did not break the law, there’s no need for an immunity provision. If they did, the suits could provide recourse to those whose privacy was violated and inform the American people of the extent of the illegality. That is how the rule of law operates. FISA can be amended as needed to safeguard our security without the provision. The House should hold firm.

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