Checks and balances are there for a reason

Americans want their government to protect them from terrorism. Most, we suspect, don’t believe the Constitution needs to be suspended in the process.

The debate over the Bush administration’s domestic spying program is a critical one that could determine how much the Constitution’s separation of powers will be allowed to tilt to the executive branch in the war against terrorism. The president seems to think it already tilts heavily his way. Many in Congress, including some in the president’s party, suggests he has taken things too far. The courts have yet to weigh in, but should get the final say.

In the meantime, President Bush asks the American people to trust him, that the highly secretive National Security Agency’s program aimed at monitoring terror suspects is “vital” and that only communications involving suspected members of al-Qaida are being targeted. Only communications to a foreign destination are involved, he assures, and it won’t go beyond that.

The U.S. Constitution, however, isn’t a trusting document. It exists to hold limited government accountable to its citizens. Its framers set up a healthy system of checks and balances that the NSA program ignores. Under the Foreign Intelligence Surveillance Act of 1978, passed by Congress under its constitutional authority, government eavesdropping on people inside the country requires an order from a special court set up for such matters.

It also allows the government to seek such an order up to 72 hours after the fact under extraordinary circumstances. That fact renders one of the president’s key justifications for the NSA program absurd – that the current process for getting a court order is too cumbersome for the fast pace of terrorism investigations.

The Senate Judiciary Committee, chaired by Republican Arlen Specter of Pennsylvania, plans hearings next month. Last week, Specter put Attorney General Alberto Gonzales on notice that he’ll have to prove the warrantless wiretapping is legal. Congress needs to assert itself here and provide an effective check on executive power.

It’s reasonable to wonder why the administration didn’t just ask Congress for such authority. Given Republican majorities in both chambers, it likely would have been granted. Why take the chance that the courts might not side with the administration?

Skeptics might suggest that politics are at play. With control of Congress at stake in this year’s elections, White House political czar Karl Rove wants to frame Democrats as weak on terrorism. Keeping the controversy alive could put Democrats on the political ropes, forcing them to appear less than committed to winning the war on terror by opposing vast executive power.

That theory has an advantage over the administration’s defense of the spying program: It makes sense.

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