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FRIDAY, FEBRUARY 10, 2006
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EDITORIAL

Congress let cat out of box with force authorization

Congress granted the White House the ability to spy on Americans without judicial review when it approved the Authorization to Use Military Force after the Sept. 11, 2001, terrorist attacks on New York and Washington, D.C., Attorney General Alberto Gonzales said this week.

Mr. Gonzales told the Senate Judiciary Committee that the controversial eavesdropping program, administered by the National Security Agency, is a vital "early warning system" for terrorism.

Senators wanted details of the NSA program, which includes monitoring international telephone and e-mail communications of al-Qaida suspects — including those to and from American citizens — without authorization from the court established in the Foreign Intelligence Surveillance Act for that specific purpose. They also wondered if the administration had broadened the scope of the program, which Mr. Gonzales and President Bush both characterize as "very narrow."

Mr. Gonzales, not surprisingly, was less than forthcoming with details of the top-secret program. Most of his responses failed to address the senators' questions. He chose his words carefully on the few occasions he directly answered those questions. Unlike previous committee hearings, Mr. Gonzales was not required Monday to testify under oath.

Committee Chairman Arlen Specter, R-Pa., asked the attorney general why he hadn't sought FISA Court approval of the program.

"What do you have to lose if you're right?" Sen. Specter asked.

Mr. Gonzales chose not to answer directly.

Sen. Patrick Leahy, D-Vt., asked if the administration has authorized opening U.S. citizens' mail. Mr. Gonzales answered carefully: "We're only focused on international communications where one part of the communication is al-Qaida."

Nobody pressed Mr. Gonzales to clarify whether his pronoun "we" referred to the administration and its spying program or to the Judicial Committee and its hearings.

A summary of Mr. Gonzales' position: The administration didn't ask for FISA Court approval of wiretaps because it didn't need it. The White House didn't seek Congress' blessing because lawmakers had already approved the post-9/11 AUMF resolution.

Sen. Lindsey Graham, R-S.C., was one of the Republicans who wasn't going for it. "When I voted for (the AUMF), I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche," Sen. Graham said. "I would suggest to you, Mr. Attorney General, it would be harder for the next president to get a force resolution if we take this too far."

Unfortunately for Sen. Graham, other members of Congress and the American people, there is no need for a next time. Under Mr. Gonzales' interpretation, the executive branch of government has authorization to do whatever it deems necessary to fight the war on terror — a war against no specific enemy and with no foreseeable end. The details of those programs must be kept secret in the interest of national security. Today it includes wiretaps of those communicating with suspected al-Qaida members. Tomorrow, it could include video surveillance of those who talk with others who have communicated with al-Qaida suspects.

After that . . .

Most law-abiding Americans have nothing to worry about within the narrow scope of the program as described by the White House. But, according to Mr. Gonzales' interpretation of the law, the program could be greatly expanded to include invasion of privacy rights Americans hold sacred. And the administration's secrecy and apparent misrepresentation of the program in the past do not inspire confidence.

In the furor after the 9/11 attacks, the legislative branch ceded authority and oversight to the president. It opened a Pandora's box that can easily lead to Orwellian government spying.

The only way to get the cat back in the box now, apparently, is intervention by the judicial branch.

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