Some balance returns

July 13, 2006

The Bush administration policy of all's fair in the fight against terrorism appears to be coming under serious and long-overdue challenge by Congress and the courts.

Opponents of the National Security Agency's warrantless wiretap program sense willingness by at least one federal judge to reject the administration's tried-and-true claim that some programs are too secret to be sued, according to a report by The Sun's Gail Gibson.

Long-compliant Republican lawmakers, including House Intelligence Committee Chairman Peter Hoekstra, are publicly complaining that they have not been informed of, much less consulted on, the establishment of huge new databases secretly monitoring phone calls, faxes, e-mails and bank transfers of potentially innocent Americans.

And these developments come in the wake of the most serious setback to President Bush's power grab - the Supreme Court ruling slapping aside military commissions created without congressional approval to try alleged combatants in the war on terror outside the bounds of the Geneva Conventions.

By no stretch does this trend restore federal checks and balances to their intended equilibrium. But at least the trend is finally headed in the right direction. No president should have unlimited power, even in time of war, and especially not when the war is an amorphous struggle likely to go on indefinitely.

So often it has seemed that the administration's main motive for acting unilaterally, and usually in secret, has been to avoid the scrutiny and interference of potential critics.

Ms. Gibson reported that lawyers defending the NSA in challenges to its warrantless wiretaps insist the program is legal but say they can't prove it in court without disclosing national security information. They refuse to discuss even the most mundane procedural details of the lawsuits. The only possible resolution of such challenges is to toss them out of court, the government contends. Such circular logic would be comical if the stakes weren't so huge.

Legal experts don't hold out much hope that federal courts will suddenly abandon a practice of generally respecting the government's request to protect state secrets. But perhaps judges will begin weighing more heavily their responsibility to keep a wary eye on the executive branch.

Even assuming the very best of intentions, each branch of government needs some form of oversight to protect the democracy.

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