While Congress slept

THE PERFORMANCE OF CONGRESS during much of the Bush administration has been, to put it kindly, undistinguished. But revelations that the National Security Agency may have violated the law by secretly eavesdropping on U.S. citizens offer Republican congressional leaders a chance to redeem themselves -- and their institution.

It remains to be seen whether the spymasters were merely overzealous in their efforts to track international terrorists or deliberately snooped on Americans. Congressional hearings on the NSA affair may answer that question. What is alarmingly clear, however, is that President Bush has consistently overreached in his claim to expanded powers as commander in chief during wartime. It is up to Congress to restrain those powers. His duty to protect the nation does not place him above the law.

Bush’s claim to disturbingly broad wartime powers first surfaced in the infamous 2002 “torture memo” written by John Yoo, then a lawyer in the Justice Department and now a professor at UC Berkeley’s Boalt Hall School of Law.

The most quoted part of the memo is its definition of torture as only the extreme standard of pain accompanying “serious physical injury such as death or organ failure.” The much scarier part comes a dozen pages earlier, with this assertion of unfettered presidential wartime power: “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the president’s ultimate authority in these areas.” Translation: Fighting a war is more important than obeying the law. If a law interferes with our strategy, we can ignore it.

Was Bush chastened by the political repudiation of a 90-9 vote in the Senate in favor of Arizona Republican Sen. John McCain’s amendment banning torture? Not in the least. When he signed the law, Bush announced that “the executive branch shall construe [the law] in a manner consistent with the constitutional authority of the president ... as commander in chief” to further the goal “of protecting the American people from further terrorist attacks.” Translation: We can override this law whenever necessary.

Congress also stood by when the administration overreached with its novel definition of enemy combatants, who are not entitled to challenge their own detention. Congress could have intervened, but instead the courts have had to sort out the mess. Even after the bipartisan outrage that greeted the NSA spying, the only official protest Congress could muster was a short delay in the renewal of the Patriot Act.

Now the president claims that even the special court set up to issue secret warrants to authorize wiretapping for national security purposes gives him insufficient powers to fight terrorists. Translation: When the courts are inconvenient, we will bypass that branch of government too.

Terrorism presents the U.S. with an enemy unlike any we have seen before. Most Americans agree with Bush that intelligence-gathering on Al Qaeda and its spawn may require more extensive investigative authorities. But the more sweeping the powers granted the executive branch, the more vital it is that Congress provide meaningful oversight. The irony is that the Republican-dominated Congress would likely grant Bush the extraordinary powers he seeks -- if only the president would request them through legislation, instead of trying to claim them by fiat.

The struggle against terrorism will not end soon, and the choices we make in fighting it will help define us as a nation for decades. To allow any president to invent the law as he goes along is to invite contempt for the law for many presidencies to come.