The Obfuscation Report

The news that the National Security Agency has been illegally eavesdropping on American citizens has not produced the outrage it deserves.

That's because once again the Bush administration is using the war on terror as justification for its most ill-advised actions. If the White House raises the threat of terrorism - as it has in invading Iraq and torturing detainees - Americans apparently will be frightened into going along with just about anything.

In this case, that includes defying Congress and ignoring the Constitution.

That's what President Bush is doing in allowing the NSA to spy on Americans without warrants. The law is clear: The agency must ask a secret court for the warrant, either before the eavesdropping is done or, if it's an emergency, within 72 hours afterward. The secret court almost never denies permission.

But Mr. Bush has been bypassing the court for four years now. The NSA has flooded the FBI with what has turned out to be overwhelmingly useless information, which has required hundreds of agents to check out thousands of tips, with nothing significant to show for all that work.

The biggest issue is the balance of power defined by the Constitution. The Founding Fathers intended the three branches of government - the executive, legislative and judicial - to be equal and serve as a system |of checks and balances on each other. But Mr. Bush is determined |to override that system and make the executive the most powerful of the three.

He insists that his role as commander in chief in time of war and the authority Congress gave him to use military force after 9/11 allow him to monitor Americans' e-mails and phone calls without warrants.

But the Congressional Research Service, a non-partisan arm of Congress, reviewed the constitutional and legal issues and found it "unlikely that a court would hold that Congress has expressly or impliedly" authorized domestic surveillance without warrants.

Mr. Bush is creating a constitutional crisis by effectively putting himself above the law.

He also recently signed the ban on torture pushed through by Sen. John McCain, R-Ariz. But after agreeing not to veto the measure if Congress approved it, he reserved the right to violate it if he believes |it's necessary.

Even in a time of war, the United States is a nation of laws, and the president is not above them.

No doubt Mr. Bush will use yesterday's release of a tape of Osama bin Laden warning of more terrorist attacks on the United States as proof that the NSA's secret surveillance program is needed.

Vice President Dick Cheney said yesterday that monitoring communications from the United States to people overseas suspected of terrorist links is "absolutely vital" to the war on terrorism.

Fine, Mr. Cheney, but get a warrant.

The vice president apparently didn't repeat the unsupported claim he has made in recent days, that the secret surveillance has saved "thousands of lives."

All Americans want to be safe from terror, and no one disputes the fact that the threat of another terrorist attack is real and ongoing.

But the laws regulating domestic surveillance do not tie the president's hands. He can ask the secret surveillance court for warrants, and he will almost certainly get them. |Or he can ask Congress to revise |the law.

That would require a compelling argument for widespread spying |on Americans or substantive proof that the secret monitoring has been effective in preventing terrorist activities.

Mr. Bush has neither.

He relies instead on our fears of terrorism to protect him from being called to account.