The war on terror should not supersede the laws of the land

In the process of declaring war on terrorism and terrorists and, of course, terror in general, the Bush administration has, inadvertently or not, declared war on the other two branches of government and they are not amused. So expect a contentious and argumentative 2006.

The revelation that the administration, without the court's approval, ordered the National Security Agency (NSA) to tap phone calls and monitor e-mails going in and out of the country has led to a revolt by the judiciary and the Congress.

The most vexing fallout for the White House at the moment is the extremely short-term renewal of the Patriot Act in the Congress. The law will be open for discussion again in five weeks, which is when the Hill will begin to debate the NSA phone-tapping, and the mood will almost certainly grow sourer as the revelations continue to drip out.

But another potentially bigger issue arose last week in Richmond, Va. There, a three-judge panel smacked down a legal maneuver by the Bush administration.

The case stems from the detainment of Jose Padilla, the alleged would-be dirty bomber from Chicago. Mr. Padilla was being held without a trial as an enemy combatant, a move his lawyers said was unconstitutional. Padilla's case has made it all the way to the Supreme Court and, just as the case was about to be heard, the White House suddenly changed gears and decided they wanted Padilla charged as a civilian - hoping such a move would mean the high court would no longer be involved.

But the Richmond court not only denied the administration's request to move the case, it said the request to move him after demanding he be held without trial came at "substantial cost to the government's credibility."

If that wasn't enough of a rebuke, consider that it came from the same Richmond court that sided with the administration in September, when it agreed Padilla could be held without a trial. Want more? How about the fact that the Richmond court's opinion was written by Michael Luttig, the judge Bush recently considered to fill an empty seat on the Supreme Court.

In other words, a lot of people in Congress and the courts aren't exactly celebrating the White House's prosecution of the "war on terror."

None of this should be unexpected. There are, according to the Constitution, three coequal branches of government in the United States and when one of them starts stepping on the others' toes, there are going to be problems.

Immediately after 9/11 a lot of concessions were made to the executive branch, but times change, the norm reasserts itself and people begin to have second thoughts - in both parties there's nothing saying the next president will be a Republican and that is almost certainly weighing on GOP minds.

Of course, it is a time of war, and in times of war the executive branch usually cites the need for special powers to keep the country safe. The inevitable parallels have already been drawn between the "war on terror" and other conflicts - World War I, World War II, the Civil War - but there are some notable differences in this war and they mean the usual claims of special powers, and particularly extraordinary ones, will be a hard sell.

The US is at war with no country or government this time around. There is no "front" in the traditional sense. There will be no peace treaty signed when the battle is done. And it is unclear whether we'll even know when the battle is actually done. The "war on terror" will go on for years, likely decades.

And all of that means the extension of any special powers could become largely permanent if they are not challenged. Congress and the courts aren't happy about signing over powers for any amount of time, but indefinitely? Not likely.

On top of all this, there's the substance of the administration's moves, particularly where the NSA eavesdropping is concerned. There was already a system and a court in place to handle the requests for domestic surveillance. In emergency cases, agents can eavesdrop for 72 hours before getting a warrant retroactively. And when they need a warrant, the Foreign Intelligence Surveillance Court (FISC) has been more than compliant.

The FISC has received about 19,000 eavesdropping requests since it was created in 1978. It has denied a handful. In 2004, there were more than 1,700 requests. How many were denied? None.

Still, the White House says it's not enough. The executive branch needs superspecial powers for this on-going war. The FISC and the system around it aren't good enough because they come from pre-9/11 thinking.

That's true, of course, but that argument can easily become a slippery slope. Speed limits, fuel- efficiency standards, Miranda rules, - probably 99 percent of the laws in this country - are the result of what we have come to call pre-9/11 thinking.

In fact, one could well make that argument about the US Constitution.

Dante Chinni writes a twice-monthly political column for the Monitor.

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