Bush learning Constitution maybe

The announcement last week that President Bush will not be reauthorizing the warrantless surveillance program run through the NSA since shortly after Sept. 11, 2001 came as a pleasant surprise to many on the left and right concerned about the rather cavalier way his administration so routinely dismisses the concept of checks and balances.

Attorney General Gonzales’s letter to the Senate Judiciary Committee came within days of an announcement from Transportation Security Administration officials regarding the “no fly” and “watch lists” that inconvenience thousands of Americans not because they’ve done anything wrong but simply because their name is similar to one on a list of some 45,000 people assembled by government bureaucrats for the ostensible purpose of protecting the flying public from terrorists. Spokesmen for TSA say that after a name-by-name review, they expect to cut the list in half and, wonder of wonders, finally come up with an expedited review procedure that will allow non-terrorists inconvenienced or even denied the right to board a plane to get their names removed from the list.

A year or so ago I found myself in Honolulu as the local papers were covering the plight of a poor retired postal worker who was going to fly to the mainland to see his grandchildren, but found when he got to the airport that he was on the “no fly” list. At the time there was no real review and he was simply told that he would not be allowed to fly.

The man was understandably exasperated and angry. He told the reporter who interviewed him that while it might be “inconvenient” to deny someone living in, say, Chicago from flying, it was a different and far more serious matter to ground someone in Hawaii. “I certainly can’t drive to the mainland,” he said. The bureaucratic response then, as ever, was that we must put up with these “inconveniences” for the greater good so that those who are allowed to fly can do so in relative safety.

The privileged escaped these difficulties. When Sen. Edward Kennedy (D-Mass.) found himself on such a list back in 2004, a complaint to TSA got things fixed pretty fast — at least for him. The postman from Honolulu wasn’t as powerful or lucky. For all I know, he and thousands like him are still grounded or constantly harassed when they travel. But if we are to believe the folks at TSA, all that is going to change in the near future.

So, it is at least possible that the White House and those who toil to protect us from terrorism are getting the message that it is neither wise nor consistent with the traditions of the society they are sworn to protect to treat everyone as a potential terrorist or to ignore the Congress, the courts, the media and the citizenry in their zeal to protect us.

The president apparently did a 180 on the NSA program because of a fear that neither Congress nor the courts was going to continue accepting his unique theory that the presidency is a law unto itself; TSA began to think seriously about reform after the media publicized not just the mess that has been made of the “no fly” and other lists it maintains, but the fact that those seriously suspected of being potential terrorists aren’t even put on it.

Questions remain about how serious the administration is about running its various surveillance programs within the law, but these are good signs. Maybe they’re beginning to get it.

The institutional tension between Congress, the courts and the executive is beginning to pay dividends for a public that values both freedom and security. That, after all, is the way the founders designed the system and what we are learning today is that it is as workable in the 21st century as it was in the 18th. 

Last week the Defense Department official who blatantly attempted to equate law firms providing legal assistance to detainees with Osama bin Laden apologized after finding himself out on a limb all by himself. Maybe the message is working its way down.

But there’s still a way to go. A week or so ago, the President attached what is known as a “signing statement” to a postal bill that suggested he believes the feds have a right, with neither oversight nor review, to open anyone’s mail any time they want. When asked by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) if this is indeed what the administration is claiming, the attorney general wouldn’t answer.

Keene, chairman of the American Conservative Union, is a managing associate with Carmen Group, a D.C.-based governmental-affairs firm (www.carmengrouplobbying.com).