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The NSA intercepts are just one instance of the Bush Administration's effort to pursue the war on terrorism unhindered by some long-established legal norms. Most Americans agree that the government has to go after terrorists aggressively and with all appropriate means. Where they part company is on the question of what means are appropriate, at least if the goal is not only to deter another attack but also to protect both the freedom of Americans and the reputation of their country as one that takes ideas like decency and justice seriously. In the White House version of how that struggle must be conducted, it's acceptable to hold captured suspects indefinitely without trial, hand them over for questioning to nations known to torture prisoners, define American citizens as enemy combatants who can be detained without charges, resist efforts by Congress to put limits on the rough interrogation of detainees and allow the CIA to establish secret prisons abroad. Any and all of those things may be necessary, but this is shaping up as the year when we take a long, hard look.
To support its aggressive conduct, the White House has been developing a very robust interpretation of presidential power. Vice President Dick Cheney in particular believes that presidential power has been unreasonably confined since the 1970s. Although he served as a Congressman from Wyoming from 1978 to 1989, it's the Executive Branch that holds Cheney's heart. As White House chief of staff for Gerald Ford from 1975 to 1977, he saw up close how Ford's powers were repeatedly reined in by a newly invigorated Congress determined to refuse Nixon's notions of Oval Office prerogative.
Because they required the President to plainly bypass an act of Congress, the no-warrant wiretaps may be the sharpest expression yet of the Administration's willingness to expand the scope of Executive power. When the NSA was established, in 1952, there were few legal limits on its power to spy within the U.S. Then came the intelligence-gathering abuses of the Nixon years, when the NSA as well as the FBI were used by the White House to spy on civil rights and anti-Vietnam War activists. In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA), which required the NSA to obtain a warrant any time it sought to monitor communications within the U.S. (Outside the U.S., it still enjoys a free hand.) The new law created the FISA court, an 11-member secret panel whose job it is to hear the NSA requests and issue--or deny--the warrants. In the event that the NSA comes upon a situation that seems to require immediate action, the law permits the agency to eavesdrop without a warrant so long as it applies for one within 72 hours.