All tapped out on civil liberties?

IN THE past year, President Bush has twice persuaded Congress to grant him new powers to deal with suspected terrorists by demanding action in the last hours before lawmakers leave town. In October, Bush used this technique to win approval for a new law that stripped Guantánamo detainees of their right to challenge their imprisonment in court. The administration took the same tack last week and won Congress's support for broadened authority to wiretap without warrants.

Each time, Bush has sought new authority without much oversight from other branches of government. And each time, Congress caved when faced with the threat of being accused of leaving Washington without giving the president power he needs. The difference this time is that Democrats control both houses on Capitol Hill. The majority's new leaders should have insisted on a full debate over whether the 1978 Foreign Intelligence Surveillance Act needed to be loosened and over how best to ensure careful judicial review of any changes to that law.

Under the new law, the government can eavesdrop without a warrant on any phone and e-mail communications between an American and a person in a foreign country. This goes beyond even the secret wiretapping that was started after Sept. 11, in which the foreigner had to be a terrorism suspect.

While the new law calls for destroying information about Americans obtained in the eavesdropping, officials can keep it if they believe it might have foreign intelligence value or provide evidence of a crime. Congress will have a chance to vote again on the new powers in six months, but what will that decision be based on? Nothing in the law guarantees that members will know even how many such wiretaps have been used.

The new law grants responsibility for drawing up procedures for the wiretapping to Bush's discredited attorney general, Alberto Gonzales, and the director of national intelligence, Michael McConnell. They will submit them for review to the special panel of intelligence judges who had, under the 1978 law, approved warrants for eavesdropping on Americans. But the panel can reject the procedures only if they are "clearly erroneous" in their interpretation of the new law. Nor does the eavesdropping have to wait until the procedures have been approved.

The administration maintains that technological changes have created problems with the 1978 law. But never has Bush demonstrated why the terms of that law, which permitted officials to get warrant approvals up to 72 hours after they started a wiretap, are no longer workable. This and other questions could have been answered if Congress had demanded an open debate on the administration's bill. Its failure to do so is a shameful abdication of its own responsibility. It's difficult to maintain a system of checks and balances when one branch simply checks out.