Republican senators have developed a bill that will enshrine the Bush administration's lack of observance of the Foreign Intelligence Surveillance Act. Unfortunately, their approach perpetuates the lack of oversight and does not assure future protection of Americans' civil liberties.

The FISA law of 1978 says basically that the National Security Agency can bug Americans' phones and read their e-mails, if their correspondent is overseas, but only if the FISA court approves the action. In urgent cases, wiretapping can begin before court approval, but that approval has to be sought immediately thereafter.

The White House decided shortly after 9/11 that it no longer needed court approval to tap Americans' phones and e-mail, based on its perceptions of Mr. Bush's authority as commander in chief. It has carried out surveillance of the phone calls and e-mail of thousands of Americans and others, at home and abroad, without court approval. That surveillance continues to this day, in violation of FISA.

The government law-breaking involved in the NSA wiretaps is being carried out in the name of Bush administration solicitude for Americans' security. Civil liberties groups and some senators are uncomfortable about what is going on. The solution that the White House and some Republican lawmakers have put forward is intended to meet these concerns.

Their proposal includes two provisions. First, a new seven-senator "terrorist surveillance subcommittee" would be created. The administration would be required to give the panel full access to information about surveillance activities. Second, the administration would still be required to seek court approval to tap phones and e-mails, but within 45 days of the surveillance, "whenever possible," as opposed to before or immediately after starting the surveillance. If the administration decided that it did not want to seek court approval, after 45 days it would be required to tell the subcommittee and provide a reason.

In other words, the administration's practice of not seeking the advance approval of the court, as required by FISA, could be maintained. Congress would not even look into the violations of the 1978 law.

In the future, the administration, in the form of the NSA, could bug the phones or read the e-mail of anyone it liked, seeking or not seeking court approval as it liked, and informing or not informing the new surveillance subcommittee as it liked.

As to protecting the rights of Americans, there are major problems. The first is that the protections accorded by having a court oversee the surveillance done under FISA get thrown out the window. The Bush administration did as it pleased in disrespecting this law for nearly five years; now, not only does nothing happen to it for that, but its practice is made legal after the fact and for the future.

The bottom line is that the Bush administration can bug any American's phone or e-mail involved in overseas communication at will, with no court looking at what it is doing, and no member of Congress looking at what occurred after the fact, if the White House so wishes.

The odor of what has happened and what the new White House-Senate proposal would institutionalize is clearly "police state," and for no good reason. FISA makes possible all of the surveillance of terrorists that is needed, with no delays and with effective oversight by a responsible U.S. court. There is no reason to change it.