More casualties of war

THE WAR AGAINST terrorism should not be a war against Americans' own constitutional rights. That is the core of a federal judge's ruling Thursday that the Bush administration's warrantless surveillance program violates the Constitution and a 1978 law on wiretapping. The administration has already said it will appeal, but a wiser course would be to sit down with members of Congress and, if necessary, amend the 1978 law.

The recent reports from Britain about a new terrorist plot to bomb airplanes reinforced the need for security officials to use electronic surveillance as well as human intelligence to keep abreast of such conspiracies. Critics of the Bush program, which allows the National Security Agency to eavesdrop on conversations between US residents and Al Qaeda or Al Qaeda-associated callers overseas, are not against surveillance across the board. It should simply be done within the terms of the Foreign Intelligence Surveillance Act.

In her ruling against what the administration calls its ``terrorism surveillance program," Judge Anna Diggs Taylor takes pains to point out the lengths that Congress went to extend flexibility to the executive branch when it designed the surveillance act. For instance, officials could have a wiretap in place for three full days before getting a warrant. What Congress then insisted on, and what the administration balks at, is the requirement of a warrant: that security officials must at some point justify to a judge the ``reasonableness" of their quest.

But instead of giving reasons to Congress why even the wiggle room in the 1978 law is too binding, the administration used a military-authorization resolution passed by Congress after Sept. 11 and the president's inherent powers as its justifications for wiretapping with no warrants. Taylor, of the US District Court in Detroit, notes that the congressional resolution makes no mention of surveillance and she gives short shrift to the inherent powers argument. ``There are no hereditary kings in America and no powers not created by the Constitution," she says. ``It is noteworthy" that administration officials ``have sought no congressional amendments which would remedy practical difficulty."

That sentence should point the administration to its next step. If technical developments have made the 1978 law too restrictive, it should make that case to Congress.

But the administration has taken every possible step to avoid review of the program by Congress or the courts. In the case before Taylor, the administration argued against the legal standing of the plaintiffs and then tried to short-circuit the proceedings by invoking a ``state secrets" privilege. Taylor says the plaintiffs, who included academics and journalists doing work with Islamic groups, did have standing because the surveillance program could have a chilling effect on their communications. The judge says that her private review of secret government documents and the information about the surveillance program disclosed publicly by the administration had persuaded her that the state secrets argument had no merit.

In 2004, when Supreme Court Justice Sandra Day O'Connor upheld the due-process rights of a war-on-terror detainee, she said: ``It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad." Taylor includes O'Connor's words in her decision. Unless the president wants to have O'Connor's words thrown at him time and again, he should stop violating the 1978 law.