MB Civic

One big thing we’ve learned from watching President Bush’s assault on the balance of powers is that the federal courts are the only line of defense. Congress not only lacks the spine to stand up to Mr. Bush, but is usually eager to accommodate him.

So it is especially frightening to see the administration use the debates over the prisoners at Guantánamo Bay and domestic spying to mount a new offensive against the courts.

Wiretapping: This campaign is most evident in the debate over Mr. Bush’s decision to authorize the interception of Americans’ international phone calls and e-mail.

Mr. Bush and his legal advisers claim the president is free to ignore the 1978 law requiring warrants for such wiretaps, as well as the Constitution, because the eternal war with Al Qaeda gives him commander-in-chief superpowers. But the administration knows the Supreme Court is unlikely to endorse this nonsense. So it has agreed with the chairman of the Senate Judiciary Committee, Arlen Specter, on a bill that is a mockery of judicial process.

Under the bill, Mr. Bush would have the option, but not the obligation, to ask the Foreign Intelligence Surveillance Court to decide whether his spying program is constitutional. The surveillance court was created for one purpose — to review applications for surveillance warrants. It is not the place to make a constitutional judgment.

The case would be heard in secret, and only Mr. Bush’s case would be made because no one would be there to argue against him. There is not even a requirement that the final judgment be made public. Worst of all, if Mr. Bush lost in the secret court, he could appeal. But if he won, there would be no appeal and the case would never go to the Supreme Court.

There is a better way of doing this — a bill by Senator Charles Schumer of New York that would allow groups or people to challenge the spying and let the courts work as they have for two centuries.

Prisoners: Last month, the Supreme Court ruled that Mr. Bush violated the Geneva Conventions and American law by creating military commissions to try prisoners at Guantánamo Bay without any of the accepted safeguards of a judicial process. It rejected Mr. Bush’s notion that he could decide which people deserved civilized treatment and which did not. (Keep in mind that the majority of prisoners at Guantánamo Bay are either low-level Taliban soldiers captured in Afghanistan or innocents turned over to American troops in return for money.)

The court said Congress had to draft a law covering the prisoners that conformed to American standards of justice and to international law. But Congress had barely started hearings before the White House began circulating its own bill, which would simply endorse what Mr. Bush did rather than trying to overcome the court’s objections.

On the Geneva Conventions, for instance, the bill offers a particularly twisted bit of reasoning that says Congress has decided to interpret the conventions in such a way that everything Mr. Bush has done, or will do, conforms with their requirements. But the court firmly endorsed the Geneva Conventions, which include the requirement that a prisoner be present at his trial. The White House bill simply revokes that right.

The White House says it’s showing this draft law to the military lawyers it ignored when it formed its original policies on prisoners. Since the bill essentially mirrors the original policy, we hope those courageous lawyers object once again and that this time, the administration actually listens.