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THURSDAY, JANUARY 18, 2007
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EDITORIAL

Gonzales speaks out of both sides of his mouth

U.S. Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy.

In a speech at the American Enterprise Institute on Wednesday, Mr. Gonzales said there are "inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments."

"For example, a judge will never be in the best position to know what is in the national security interests of our country," Mr. Gonzales said.

He said judges who "apply an activist philosophy that stretches the law to suit policy preferences ... actually reduce the credibility and authority of the judiciary."

Such sophistry would make even Socrates blush.

First, Mr. Gonzales until Wednesday ignored the Foreign Intelligence Surveillance Court, established by federal law specifically to find probable cause justifying surveillance of international threats.

The FISA Court allows the executive branch to secretly request surveillance warrants — even, in specific cases, after the fact. If federal law enforcement agencies suspect a national security threat, all they have to do is share the information with the FISA Court to get surveillance approval.

The current administration, however, until Wednesday took the position that Congress' joint resolution authorizing military force in the wake of the Sept. 11, 2001, terror attacks renders the FISA Court an unconstitutional infringement of executive authority; that, in fact, the president can do whatever he wants in the name of national security. This is how the administration has justified its secret warrantless surveillance of Americans and foreigners.

Next, inherent in Mr. Gonzales' argument are the somewhat arrogant assumptions that the president and Congress know what is in the national security interest of our country — and that they will act accordingly. Yet the Constitution establishes three separate branches of government, with separate powers and responsibilities, in order to provide oversight of each other and keep each others' power in check. Mr. Gonzales, in his infinite wisdom, seems to think that the Founders created one branch too many.

Finally, Mr. Gonzales is guilty of the exact act for which he criticizes judges: applying an activist philosophy that stretches the law to suit his policy preferences. Why, then, does this not diminish his own credibility?

Perhaps Mr. Gonzales has let his enthusiasm for national security cloud his judgment with regard to the Constitution. Or, perhaps, he has a more sinister motive for seeking to reduce the role of the judiciary in protecting the rights of Americans.

We hope the former is the case.

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