Editorials

It was revealed late last year that the Bush administration had granted the National Security Agency the power to eavesdrop on Americans without first seeking a warrant.

Besides being an affront to the Constitution and the liberties it grants, this program, initiated after the 9/11 attacks, violates the Foreign Intelligence Surveillance Act. The 1978 law requires the government to obtain a warrant before spying on Americans. Bottom line, the Bush administration is breaking that law.

On Monday, the government and the American Civil Liberties Union were in federal court in Detroit. The question placed by the ACLU before U.S. District Judge Anna Diggs Taylor is whether the NSA is breaking the law.

“We’re not arguing that the administration — the executive office — doesn’t have the power to protect us by spying,” says one of the plaintiffs. “What we’re arguing is that they don’t have the power to protect us by violating the Constitution.”

The government’s retort on Monday was: We’d love to inform you of how wrong you are, but we can’t. The program is so secret we can’t say a word.

Publicly, the White House’s spokesmen, and even the president, defend the program by saying it only targets members of al-Qaida. But do al-Qaida cell phones have different ringtones from the rest of us? How can any agency ensure that terrorists are the only ones being spied upon? As lawyers pointed out Monday, the government is all thumbs when it takes liberties with the law; it always snags innocent bystanders in the dragnet.

Government lawyers claim the plaintiffs can’t prove they’ve been spied on by the NSA. True enough. The ACLU’s lawyers — just like the rest of us — aren’t able to establish who is being spied on because the government is keeping the details secret.

Dizzy yet?

In other words, the government’s case is: Trust us.

But the Constitution doesn’t provide a chief executive with a “just trust me” clause. The country was founded on the opposite principle: accountability, full disclosure, checks and balances, no man or woman above the law.

“Democracies die behind closed doors,” is how another judge put it when faced with the administration’s extra-constitutional behavior.

Beyond the legal questions is a larger philosophical matter seldom pondered. The Bush administration, it seems, believes it must bend or break the law and infringe on our liberties to defeat this generation’s enemy, jihadists who resort to terrorism. But should real patriots give up on our system of government — on its rule of law and its freedoms — so readily?