Editor in chief

ONE OF THE PERKS OF being commander in chief is that you get to edit the Constitution, even the Bill of Rights, from time to time. That is in essence the legal justification offered by the Bush administration for its authorization of a secret program to wiretap, without any court order, international communications of

individuals within the United States suspected of ties to terrorist groups.

Bush acknowledged in his Saturday radio address that he had authorized the National Security Agency to conduct such wiretaps in the aftermath of the 9/11 terrorist attacks, and the administration has been trying ever since to explain why it believed it could get away with such a brazen deviation from accepted practice.

In his radio address, Bush said he was empowered by a congressional resolution that authorized the “use of all necessary and appropriate force” to respond to the 9/11 attacks, on top of his normal constitutional powers as commander in chief.

“The fact that we’re discussing this program is helping the enemy,” Bush testily said at his Monday news conference. He then made much of the fact that the monitoring program, which bypasses the Foreign Intelligence Surveillance Act’s requirement that investigators seek secret court warrants in national security cases, only applies to international communications, where one caller or e-mail correspondent is out of the country.

“So in other words,” Bush explained, “this is not a -- if you’re calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.”

This distinction between international and domestic calls is perplexing. Americans in their own country do not waive their 4th Amendment right to privacy when they dial 011.

Moreover, the distinction doesn’t even make sense on the administration’s own terms. The FISA courts are notoriously accommodating to government requests, which can be made even after the eavesdropping has taken place. Nonetheless, Bush claims they’re not nimble enough to be effective in the war on terror. Yet if that’s the case, why is the government still relying on them in the domestic context? What if you had two suspected Al Qaeda cells communicating with each other within the United States?

If the current setup is so cumbersome, the president should have pushed for a change in the law. The fact that he instead made a secret decision to cut out judicial oversight of wiretaps may have had more to do with the White House’s desire to expand executive power than with any real shortcomings in the process.

Separately on Monday, Atty. Gen. Alberto R. Gonzales made the implausible argument that wiretapping someone’s phone in the United States without a court order flows as naturally from the congressional use-of-force resolution as the power (approved by the Supreme Court) to detain enemy soldiers captured on the battlefield for the remainder of the conflict. Many lawmakers have already indicated surprise that their vote to fight the Taliban and Al Qaeda in the aftermath of 9/11 is being called a vote to suspend the Bill of Rights at home.

If a lawsuit ever emerges from all this, it will be fascinating to see if the Supreme Court buys Gonzales’ reasoning.