WASHINGTON — President Bush has claimed some far-reaching powers for the executive branch in its prosecution of the war against global terrorism – but in the face of legal challenges and newly empowered Democrats, some of those powers slowly are being curtailed.
In the latest such move, the administration itself has decided to put the National Security Agency's secretive domestic spying program under judicial oversight. This program, under which the NSA monitored phone calls and e-mails between the United States and other countries when a participant was suspected of a link to terrorism, has until now operated without court-issued warrants.
The warrantless eavesdropping operation, along with the abuse of detainees at Abu Ghraib prison and other civil-liberties issues, has caused even US allies overseas to question what was happening to the basic nature of the United States, says Joseph Nye, former dean of Harvard's John F. Kennedy School of Government in Cambridge, Mass.
But now US courts have held that some aspects of the administration's detainee policies aren't constitutional. Harsh interrogation techniques such as waterboarding may no longer be permitted. And judges will apparently now decide whether NSA wiretaps are justified.
"We are still capable of self-correction," says Mr. Nye, now a professor of international relations at the JFK School. "That has an attraction overseas."
A senior Justice Department official who briefed reporters Wednesday on the change in the wiretapping program said that the NSA program had been run in a legal manner. That said, there are advantages to having a judge oversee the program, said the official – though he declined to specify what the advantages were.
"Obviously, this issue of the terrorist surveillance program is one that has been under intense public debate and scrutiny on [Capitol Hill]," said the official. "And just considering all these circumstances, the president determined that this is the appropriate course."
Last August, a federal judge in Detroit had ruled the program unconstitutional, saying it violated privacy and free-speech rights, as well as the separation of powers between the branches of government.
That ruling may now be moot, according to Justice Department officials. Long-standing critics of the program were not so sure, saying that the lack of details about what exactly had changed means the courts may still need to examine the issue.
"The NSA was operating illegally, and this 11th-hour ploy is clearly an effort to avoid judicial and congressional scrutiny," said ACLU executive director Anthony Romero. "Despite this adroit back flip, the constitutional problems with the president's actions remain unaddressed."
The NSA program, to this point, has been reauthorized every 45 days by executive order. On Wednesday, the Justice Department in a letter to congressional leaders announced that he will not reauthorize the program after the current 45-day period expires. Instead, the Foreign Intelligence Surveillance Court, a panel set up in the wake of Vietnam-era struggles over executive-branch secrecy, will handle NSA eavesdropping requests, apparently case by case.
In fact, such oversight is already occurring. The FISA panel issued multiple orders last week allowing surveillance of communications thought to be linked to terrorism in which one party is in the US.
The Justice Department announced the change a day before Attorney General Alberto Gonzales appeared for an oversight hearing before the Senate Judiciary Committee. With the panel now controlled by Democrats, Mr. Gonzales's relations with Congress may be testier than they have been to this point.
For instance, at the hearing Gonzales announced that he might not be able to release details of FISA orders on the program, causing committee chairman Patrick Leahy (D) to say, "Are we Alice in Wonderland here?"
Gonzales responded, "There is going to be information about operational details about how we're doing this that we want to keep confidential."