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Mon, Oct. 14

The surprising lessons of the Patriot Act

The girls all get prettier at closing time. And regardless of whether you like President Bush, the Patriot Act looks better with each passing minute.

Liberals always regarded the measure, enacted weeks after the Sept. 11, 2001, attacks, as a brazen assault on civil liberties. The Bush administration, on the other hand, eventually decided the law didn't go nearly far enough. But thanks to recent developments in the war on terrorism, the Patriot Act has proven to have little-noticed virtues that now should be obvious to those on both sides.

The administration is unhappy because Congress and the courts are exercising more scrutiny over its anti-terrorism policies ­ particularly the recent Supreme Court decision rejecting its plan to use military commissions for Guantanamo inmates. The president's critics fault him most loudly not only for Guantanamo but also for the National Security Agency's secret surveillance of Americans' communications at home and abroad.

These and many other beleaguered policies have three things in common: 1) The administration adopted them without authorization from Congress, 2) It based them on a drastically expanded view of presidential power, and 3) It allowed no checking role for the judiciary.

All three factors create the danger of abuse ­ and dare the other branches of government to clip the administration's wings. They also present a stark contrast with the approach adopted in the Patriot Act. It carried huge majorities in both houses of Congress. It took pains to fit within established laws and Supreme Court decisions. It required judges to sign off on the use of various investigative tools.

Under the Foreign Intelligence Surveillance Act, the government has broad power to investigate the activities of terrorist suspects. The Patriot Act enlarged that power. But when the NSA saw the need to track phone calls of Americans and people abroad, it didn't go to the special court that grants warrants in these cases ­ it just went ahead on its own, dispensing with those laws and others.

Attorney General Alberto Gonzales defended this approach by insisting that Congress had granted permission when it approved military action against al-Qaida, and that the president had the authority anyway, by virtue of his role as commander in chief. But neither claim was convincing. Congress is now considering legislation on the subject, and the courts may also impose limits.

The Supreme Court did exactly that in tossing out the military commissions the Pentagon wanted to use for war crimes trials. This was not the first time federal courts ­which Republican-appointed judges now dominate ­ have ruled the administration out of bounds in its treatment of suspected terrorists.

The administration got its first bop on the snout when the Supreme Court said Yasser Hamdi, an American-born Saudi now at Guantanamo, was entitled to argue his innocence in federal court.

It lost again, when the court said the military tribunals violate federal law and the Geneva Convention. In its zeal to enlarge presidential authority, the administration provoked the Supreme Court to do just the opposite.

From the president's point of view, things may be even worse than they appear. One reason the justices gave for rejecting the tribunals ­ that Congress did not implicitly approve them in the resolution authorizing war against al-Qaida ­ would apply with equal force to the NSA surveillance. The implication is that if the government wants to deploy drastic new ways of fighting terrorism, it will have to obtain the consent of Congress, not assume it.

By contrast, the Patriot Act largely has stood up to legal challenges, and earlier this year, Congress voted to renew most of the portions that were due to expire. For all its alleged flaws, critics can take consolation that it paid deference to the constitutional separation of powers, to established precedents on presidential prerogatives and to the value of open debate. And the administration can be grateful that, unlike some programs, it gave the executive branch more powers.

The Patriot Act isn't perfect. But if it had served as a model for how to conduct the war on terror, two things would have been achieved: The president and his critics would be happier, and our security and freedom would be better protected.

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