MB Civic

Editorial | July 20, 2006 | The Washington Post

IN THE BUSH administration’s campaign to consolidate power that had once been exercised by Congress or the courts , it has taken one step after another to avoid congressional and judicial review. Now it turns out that President Bush himself blocked an internal Justice Department inquiry into the administration’s decision to eavesdrop on domestic phone calls without a warrant from a judge, as required by a 1978 law. The short-circuiting of that investigation makes it all the more important that Congress mandate full judicial review of the program’s legality.

President Bush started the domestic surveillance program in the belief that his wartime powers and a resolution passed by Congress after Sept. 11 gave him the right to sidestep the law, even though it allows officials to wiretap first, if they seek a warrant within three days. Some members of Congress challenged this and in January asked for an inquiry by the Justice Department’s ethics unit. In May, the head of the Office of Professional Responsibility wrote to Congress that his office could not investigate because its staff members could not get security clearances. On Tuesday, Attorney General Alberto Gonzales said at a Senate hearing that it was Bush himself who had denied the clearances and blocked the inquiry.

For 31 years, the Office of Professional Responsibility has conducted investigations into executive branch programs involving the highest levels of classified information. Until now, the office had never been prevented from pursuing an inquiry. The head of the office, H. Marshall Jarrett, made these points within the Bush administration in trying to get the clearances.

Gonzales told the Senate that the president withheld permission because he wanted to limit the number of individuals who knew the details of the surveillance. However, by the time Congress had asked for the investigation, the program had been the subject of extensive press reports. The more likely reason for Bush’s refusal is that he feared the judgment of Jarrett’s lawyers.

In the Supreme Court decision last month rejecting military tribunals, Justice John Paul Stevens cited a quotation from James Madison: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” A president who will not let his own Justice Department’s ethics office examine the process by which the administration approved the circumvention of a law is doing his best to unmoor the government from the checks and balances so valued by Madison and the other Founding Fathers.