Snooping rebuked

August 21, 2006

Afederal judge effectively yanked President Bush up by the scruff of his neck and told him in no uncertain terms that he doesn't have the power to order National Security Agency spies to wiretap Americans without warrants.

Anna Diggs Taylor of the U.S. District Court in Detroit won't have the last word on the topic, but she has inserted some good old common sense - as well as a healthy respect for civil rights, guaranteed by the Constitution - into a debate clouded by irrelevant security concerns.

If the secret spying under way at Fort Meade is as critical to national security as Mr. Bush contends, he needs only to persuade his Republican-led Congress to approve it under Judge Taylor's ruling.

But this being an election year, and Mr. Bush being reluctant to admit he might have overreached a bit in his zeal to protect Americans, his allies immediately attacked Judge Taylor instead. The battle will continue in the courts through the fall election.

Doubtless, this is an issue that can only be settled by the Supreme Court. The implications of a ruling supporting Mr. Bush's position that his role as commander-in-chief authorizes him to unilaterally take whatever steps he deems necessary are frightening. It's hard to imagine, though, even the high court's conservative members being willing to void the constitutional checks and balances that keep one branch of government from seizing too much power.

As Judge Taylor observed: "There are no hereditary kings in America and no powers not created by the Constitution."

Meanwhile, the issue is likely to be campaign-season fodder for the Republicans' well-honed technique of playing on national security fears to drum up support.

Thanks to Mr. Bush's disastrous war in Iraq as well as economic concerns, such as higher fuel prices, that tactic might not work as well as it did in the past two elections. Polls suggest that Republicans have lost the advantage they once held among married women with children, so-called "security moms."

A key problem with Mr. Bush's assertion of his wartime powers, which he made again Friday, is that the war on terror gives every indication that it will continue indefinitely. Americans need to adapt to security changes on a long-term basis.

Under the Constitution, those changes can't be determined by one president or one administration, but by the nation as a whole through its elected representatives. It's the same system of checks and balances that sets up layers of judicial review like so many speed bumps for an administration in too big a hurry to get approval in advance.

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