Last week's ruling against the Bush administration's domestic eavesdropping program was a small start in what promises to be a long battle. Even some left-leaning scholars have been critical of Judge Anna Diggs Taylor's reasoning in her decision that the program violates the Constitution.
But the gist of the decision was correct. Taylor noted that the Founding Fathers had no intent to give the president unfettered power to spy on Americans without oversight, which is what the administration is doing through the National Security Agency.
Politicians on the right are framing this issue as one of national security. Trust us, they say. The only people affected by electronic eavesdropping will be potential terrorists communicating with their cohorts in the Middle East. On the left, politicians are framing it as a case of executive power run amok. As usual, the truth is somewhere in between.
The administration has a lot of motivation to uncover secret plots, using whatever means possible. In times of emergency, chief executives always have stretched the envelope of constitutional power. This was true even of Abraham Lincoln, who ordered the entire Maryland Legislature arrested, an arguably illegal act that prevented that state from leaving the union.
But in this case, Congress and the president long ago agreed to a process that would allow the executive branch to protect the nation while still preserving the important checks and balances the Framers inserted into the Constitution. They set up a special court that would hear emergency requests for surveillance in secret. This law, the Foreign Intelligence Surveillance Act, even allows the government to act first and obtain a warrant later, in deference to the need for investigators to move quickly.
For some reason, the Bush administration has seen this step as a threat to its efforts. Finally, administration officials recently agreed to allow the FISA court to rule whether the eavesdropping program is constitutional. But that proposal has run into a lot of congressional opposition.
This issue may not be decided until it reaches the Supreme Court. As it progresses, we hope judges of all political persuasions will be moved by the need to prevent a powerful central government from spying on its citizens with impunity. Reasonable surveillance should be allowed, but power must be checked. That's the American way.