Last week, the Senate Judiciary Committee seemed to abandon hope of bringing any real change to the Patriot Act. A lopsided and depressingly bipartisan majority approved legislation that would reauthorize a series of expanded surveillance powers set to expire at the end of the year. Several senators had proposed that reauthorization be wedded to safeguards designed to protect the privacy of innocent Americans from indiscriminate data dragnets — but behind-the-scenes maneuvering by the Obama administration ensured that even the most modest of these were stripped from the final bill now being sent to the full Senate.

In September the Senate got off to a promising start. Only three provisions are actually slated for "sunset" this year: "lone wolf" authority to wiretap terror suspects unconnected with any foreign terror group; "roving" wiretaps that can follow a suspect across an indefinite number of phone lines and Internet accounts; and "Section 215" orders that can be used to compel third parties to turn over any "tangible thing" investigators believe may be relevant to a terrorism investigation. Yet several Democrats had signaled a desire to use the renewal process to undertake a much broader review of the post-9/11 surveillance architecture, including National Security Letters (NSLs) — a controversial tool that permits the mass acquisition of financial and telecommunications records without court order — and last year's sweeping amendments to the Foreign Intelligence Surveillance Act (FISA), which permit the executive branch to authorize broad interception of Americans' international communications with minimal court oversight. Democratic Senator Russ Feingold proposed an ambitious and comprehensive reform bill called the JUSTICE Act — which still would have reauthorized roving wiretaps and 215 orders — while Democratic Senator Patrick Leahy offered a more modest bill that nevertheless sought to narrow the nearly unlimited scope of NSLs and Section 215.

The renewal of the expiring provisions was always a fait accompli, though Fox News and some conservative columnists falsely claimed that Democrats were scheming to eliminate them entirely. Feingold had recommended permitting the as-yet-unused "lone wolf" provision to lapse, but at hearings on renewal last month Democratic Senator Sheldon Whitehouse didn't believe there was "any doubt" about the reapproval of all three. Rather, Whitehouse explained, the question was whether any "further refinements" might be needed to check potential abuses.

In public, the administration declared its openness to such "modifications." As well one might expect, considering that President Obama himself had co- sponsored legislation in 2005 containing many of the very same safeguards now in Feingold's bill. Even when, during the campaign, Obama had disappointed many of his supporters by voting for the very FISA Amendments Act he pledged to filibuster, he reassured them that as president he would revisit that "imperfect" bill. Civil libertarians understood that the more limited Leahy bill would provide the template for reform but had reason to hope some of the key provisions of Feingold's JUSTICE Act might be incorporated during markup.

It was not to be. When the Senate Judiciary Committee convened at the beginning of the month to start work on legislation, it became clear that the Obama administration had been waging a campaign behind the scenes to oppose any significant modifications to NSL or 215 authority — in particular, any requirement that investigators have "specific and articulable facts" tying records sought to terror suspects or their associates. In a last-minute switcheroo, Democratic Senator Dianne Feinstein swooped in with a substitute bill that gutted the core reforms of Leahy's modest bill. And it got worse. A week later, a series of further amendments offered by Republican Jeff Sessions watered down the final bill reported out of committee still further. Remarkably, the arch-conservative Sessions appears to have been taking dictation from the Obama administration, presumably to spare committee Democrats the indignity of further overt capitulation: the New York Times reported that his changes were "a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday." An attempt by Feingold to amend the FISA Amendments Act — perhaps the most egregious of the post-9/11 expansions of executive branch surveillance authority — was promptly torpedoed by Leahy on procedural grounds.

The supposed rationale for rejecting these changes — many of which the very same Judiciary Committee had unanimously favored just four years earlier — was that any new limitations on broad search powers might interfere with an "ongoing investigation." During hearings, one Justice Department official had alluded to an "important, sensitive collection program" involving 215 orders, and Attorney General Eric Holder publicly implied — though he did not state outright — that the new powers had played a crucial role in the capture of alleged bomb plotter Najibullah Zazi.

But there is ample reason for doubt. According to a report on National Public Radio, intelligence officers became aware of Zazi thanks to a tip from Pakistani intelligence indicating that he had trained with Al Qaeda. Such a tip should have provided grounds for a full-blown FISA wiretap warrant, and would have far surpassed the mere "reasonable basis" to suspect a terror link that even the most aggressive reform proposals required for NSLs or 215 orders. Democratic Senator Dick Durbin complained that "the real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy," and worried that posterity would look unkindly on his colleagues once that cloak was lifted. Feingold, too, disputed that his reforms would hamper investigations, and hinted that classified briefings had revealed uses of Section 215 that he considered abuses of the power.

While it's impossible to know precisely which tools were pivotal in the Zazi investigation, or what difference the proposed reforms would have made, the intelligence community has recently shown it has few qualms about making strained claims of necessity to support expansion of its powers.

That power to spy on "lone wolf" terror suspects under the looser standards of FISA was originally justified by the claim that FBI agents were unable to search "twentieth hijacker" Zacarias Moussaoui's laptop before 9/11 for want of such power. Yet in 2003 a bipartisan Senate report concluded that this was untrue: in reality, FBI supervisors had "failed miserably" by misunderstanding the fully sufficient powers they already enjoyed under FISA. The law as written in September 2001 would have permitted them to obtain a warrant; and in fact, investigators later used precisely the same evidence they'd already gathered to obtain an ordinary criminal warrant on Moussaoui.

Or consider the 2005 investigation of Magdy Mahmoud Mostafa el-Nashar, a former acquaintance of the London transit bombers (later cleared of wrongdoing). An FBI agent had gone to obtain records from North Carolina State University, where el-Nashar had done a stint as a graduate student. With the records in hand, however, the agent got a call from FBI headquarters instructing him to return them and instead obtain the same documents using a National Security Letter. As anyone even remotely acquainted with NSLs would have known, however, they cannot be used for educational records — and indeed, agents had to improvise a form to make their request. The perplexed university properly denied the request, and another subpoena was obtained.

Though any such misuse of an NSL is supposed to be reported to an oversight board promptly, no such report was filed for more than a year. Yet within a week of the incident, it had somehow come to the attention of FBI Director Robert Mueller, who cited the "delay" as evidence that the Bureau's current NSL powers were inadequate.

The FISA Amendments Act is the successor to an even broader bill called the Protect America Act, which similarly gave the attorney general and director of national intelligence extraordinary power to authorize sweeping interception of Americans' international communications. It was hastily passed in 2007 amid claims that the secret FISA Court had issued a ruling that prevented investigators from intercepting wholly foreign communications that traveled across US wires. Former Director of National Intelligence Michael McConnell even claimed that FISA's restrictions had rendered it impossible to immediately eavesdrop on Iraqi insurgents who had captured several American soldiers. The New York Post quoted tearful parents of the captured men expressing their horror at the situation and a senior Congressional staffer who alleged that "the intelligence community was forced to abandon our soldiers because of the law."

Yet as a Justice Department official later admitted, the FISA law clearly placed no such broad restriction on foreign wire communications passing through the United States; rather, there had been a far more narrow problem involving e-mails for which the recipient's location could not be determined. And as James Bamford explained in his essential 2008 book, The Shadow Factory, the delay in getting wiretaps running on the suspected kidnappers was the result of a series of missteps at the Justice Department, not the limits of FISA — no surprise, since even when FISA does require a warrant, surveillance may begin immediately in emergencies if a warrant is sought later. (The suspected kidnappers, by the way, turned out not to have been the actual kidnappers.) Yet on the basis of such claims, a panicked Congress signed off on almost limitless authority to vacuum up international communications — authority that we already know has resulted in systematic "overcollection" of purely domestic conversations, and even resulted in the interception of former President Bill Clinton's e-mails.

In theory, the purpose of building "sunset" provisions into these new powers was to allow — indeed, to force — Congress to consider what changes might be needed in the event of such misuse. Given the incredible secrecy of intelligence investigations, this would be a dubious check even under ideal circumstances. But what's truly astonishing is that even known abuses don't seem to have given legislators second thoughts about resisting administration demands.

Among the reforms in Feingold's JUSTICE Act was a measure requiring targets of "roving" wiretaps to be identified, as is required under criminal wiretap statutes, rather than merely described. Unlike criminal taps, FISA eavesdropping tends to be extraordinarily broad, with any innocent communications picked up "minimized" later. Yet "minimization," the legal procedures meant to protect the privacy of innocent Americans when their communications are swept up in a FISA wiretap, does not mean deletion. In a 2003 case, US v. Sattar, prosecutors submitted 5,175 recordings made under FISA that had not been "minimized." Yet, faced with disclosure obligations at trial, it turned out that they were able to produce a far greater volume of recordings: more than 85,000 audio files.

Given that breadth, the risks inherent in "John Doe" warrants, which neither name a specific phone line or Internet account in advance nor identify a target, are obvious. Indeed, a 2005 Inspector General report on the FBI's translation backlogs revealed that among the eighty-seven years' worth of foreign language material recorded FISA in 2004 alone — a tiny fraction of what the NSA collects — there were an undisclosed number of "collections of materials from the wrong sources due to technical problems." Feingold's proposed change was not even publicly debated.

Still harder to justify is the unwillingness to rein in NSLs, now issued by the tens of thousands annually — the majority of which are for the records of US persons. The Senate did see fit to make some modest changes to the NSL gag orders that prohibit recipients from talking about them — orders federal courts had already found unconstitutional in their present form. But there seemed little concern that the massive expansion in the scope of NSL authority under the Patriot Act and subsequent legislation had given rise to the endemic misuse of the letters discovered in two Inspector General reports. As IG Glenn Fine testified in September, two years after that first report, the FBI has still not produced the new internal guidelines his office recommended.

Fortunately, not all legislators are quite so willing to accept the "trust us" standard of the Bush years. Several House Democrats are requesting more public information about the use of 215 orders in particular, and there is still plenty of time to fix the flaccid bill produced by the Senate Judiciary Committee. It will take courage to push back against glib assurances that we can be made safe from terror only if Americans' private records can be vacuumed into vast databases with few limits. But if Democrats want to project real toughness in the national security arena, this would be a good place to start.

The Obama administration promised an "unprecedented level of openness in government."

The White House website says that citizens have a right to know what their government is doing and that accountability makes government more effective. That's absolutely right. In some areas, such as the liberalization of policy on Freedom of Information Act requests, the administration has embraced this principle.

Disappointingly though, the administration's commitment to openness and accountability does not extend to intelligence activities.

The administration recently threatened to veto the intelligence authorization bill, the annual legislation that funds the Central Intelligence Agency.

The trouble with the bill, according to the administration, is a requirement that intelligence officials brief some secret intelligence activities to Congress's full intelligence committees rather than just the "gang of eight" (each party's leader in each house and the chairmen and ranking members of those committees). The administration wants to keep the power to determine whom it briefs.

This veto threat, and its implicit plea to shut up and trust the executive branch, comes at an awkward time. It arrives just as we have learned about more secret, possibly illegal, doings that the Bush administration launched as part of its panicked reaction to the Sept. 11 attacks.

This month, because of a leak, we heard that the Bush administration long blocked the CIA from revealing to the gang of eight a proposed program to assassinate Al Qaeda members. Thanks to a report written by the inspector generals of several federal agencies, we also learned last week that the National Security Agency's controversial, warrantless wiretapping program (the "terrorist surveillance program" to its Orwellian creators) found few, if any, terrorists, contrary to its advocates' claims.

That's the same surveillance program conducted for years in violation of a federal statute, the one that Congress last year legalized, rather than investigate. Had the program remained a secret, as the Bush administration wanted, we wouldn't know that our laws and liberties had been abused for essentially no gain.

The inspector generals' report about the recent NSA program pointed out a related secret NSA program, one involving massive data mining of domestic e-mail traffic. That program is not particularly controversial because no one knows much about it. Does it violate the Fourth Amendment or a statute? Is it over? Those unwilling to take the assurances of the Bush administration that it was kosher are left to wonder.

We don't know the full extent of these programs. This poses a huge problem.

We hear a lot about whether the Obama administration will investigate the Bush administration for this or that abuse, torture in particular. What about the abuses we don't know about?

It is time Congress established a select committee with subpoena power to force a full accounting of activities undertaken in the name of counterterrorism.

More than that is needed though. We need a national refresher on the theory of democratic government, which tells us that secret government is always undemocratic and generally unwise.

True, secrecy prevents enemies from learning about something that damages them. In the case of intercepting e-mails or phone calls, disclosure warns terrorists dumb enough to still use those forms of communication to stop. In the case of assassination, disclosure probably doesn't much matter since terrorists are already hiding.

In practice, however, secrecy has another purpose: It protects government agencies and elected officials from the consequences of reckless or immoral decisions.

Because the public cannot hold their representatives accountable for secret acts, secret government is undemocratic. Moreover, even when Congress is informed about secret programs, or a portion of them, the programs are subject to weak checks and balances. The real overseer is the public.

Members of Congress lack much of their power when they are not permitted to talk about what they know. They can try to block funding, but the main tool for generating support for their position — publicity — is missing. That is why it is those who object to programs that leak information about them. We should thank them for it.

The requirement to justify a proposal in public requires its advocates to consider it more carefully. Debate reveals hidden assumptions and sloppy thinking. The compromise necessary to please multiple masters helps eliminate the more reckless proposals.

This is the theory of divided government that you find in The Federalist Papers. Washington commentators, particularly in national-security circles, tend to forget this, dismissing debate as partisan bickering that hinders those protecting us. But the Constitution divides power over national security to produce dissent, debate, and compromise — critical elements of a healthy democracy.

Experience bears out the theory. The history of secret government programs meant to produce security is dominated by failure and outrageous acts. Books chronicling the history of covert CIA programs, such as Tim Weiner's Legacy of Ashes, suggest that secrecy, by shrouding bad programs from scrutiny, does more harm than good.

Rather than restrict information on intelligence agencies to an inner circle, the Obama administration should stick to its original promise of openness, and, with Congress, err on the side of openness.

We employ an wide variety of techniques and social conventions to control who we communicate with in the offline world. We might share details about our love life with friends at a bar that we wouldn't share over Thanksgiving dinner. Conversely, we might tell our families about medical or financial decisions we wouldn't discuss at a bar. And we lower our voices when we want to make sure the people at the next table don't overhear us.

The early Internet was very different. Users faced a stark choice between posting information on a public Web site or sending it in a private email, with little in between. The new generation of social media tools is helping to bridge the gap. Twitter lets me make my tweets public or limit access to people I've specifically approved. Facebook allows me to decide whether my profile will be visible to others with a princeton.edu email address, whether friends-of-friends will be able to see my photos, and even whether my profile will show up at all when someone searches for my name.

Of course, there's still a lot of room for improvement. Many users find these tools inconvenient or hard to use, and some are careless about posting information that could become embarrassing in the future. But we shouldn't be too impatient; the offline world has a centuries-long head start in developing privacy-preserving tools and social conventions.

That memo urged law enforcers nationwide to monitor the allegedly gathering danger from Rightist radicals, including pro-lifers, immigration opponents, and those who reject "federal authority in favor of state and local authority."

Was this a sinister conspiracy by an administration full of Chard-sipping arugula eaters determined to spy on Red-State patriots? That's quite unlikely: The memo was commissioned during the Bush administration, as was a similar memo focusing on "Leftwing Extremists."

But conservatives were nonetheless right to be concerned. The DHS memo suggests that bureaucratic "mission creep" can be as dangerous to liberty as a deliberate campaign of repression.

America's experience with domestic spying in the pre-Watergate period makes that clear. Presidents Johnson and Nixon believed antiwar groups were being funded by the Soviet Union, and pressured the CIA, the FBI, and the military to establish the link.

Federal intelligence operatives assigned to domestic spying programs like COINTELPRO and Operation CHAOS found little evidence of communist subversion.

Yet it's the rare bureaucracy that closes up shop for lack of anything useful to do: instead, COINTELPRO and CHAOS agents began keeping files on law-abiding citizens who disagreed with their government.

The U.S. military got into the act as well. The Army kept files on over 100,000 citizens, including such dangerous national security threats as folk singers Arlo Guthrie and Joan Baez.

Senate Judiciary Committee hearings on the program revealed that "comments about the financial affairs, sex lives, and psychiatric histories of persons unaffiliated with the armed forces appear throughout the various records systems."

Given the history, it's not entirely paranoid for conservatives to wonder if federal observers might lurk among the crowds at future tea parties.

A more recent example of mission creep's dangers can be seen in the Pentagon's TALON program. TALON, short for Threat and Local Observation Notice, encouraged military personnel and civilian DoD employees to file reports on suspicious activities, which could then be sent on to law enforcement. As before, the military quickly began to monitor peaceful protests.

In March 2005, the Army's 902nd Military Intelligence Group warned the Akron, Ohio, police department about an assembly of middle-aged peace activists organized by local Quakers.

Responding to criticism of the Army's Quaker-watching excursion, a Pentagon spokesman declared, "The fact that the marches proceeded peacefully is irrelevant to leveling criticisms against the Army in this instance. Hindsight is always 20/20."

Public ridicule led to TALON's end in 2007. But other post-9/11 surveillance efforts continue apace. Yale law professor Jack Balkin warns that fear of terrorism has contributed to the growth of what he calls "the National Surveillance State," a regime in which the federal government uses its expanded information gathering capabilities to monitor the citizenry and ward off potential threats.

That in itself presents a threat, Balkin writes, because "the more powerful government becomes in knowing what its citizens are doing, the easier it becomes to control people's behavior."

In the Vietnam era, keeping tabs on dissenters was a low-tech affair. FBI and CIA agents depended on paper files and index cards; they needed to physically open letters and individually review telegrams. Today, with modern processing power and data-mining technology, the possibilities for surveillance are staggering. And so is the potential for abuse.

In March, Rod Beckstrom, the DHS official in charge of cybersecurity, resigned, citing concerns about an information security plan that envisioned a lead role for the NSA, giving the agency a dangerous level of access to civilians' web searches and email.

And the week after the "Rightwing Extremism" memo was revealed, Justice Department officials admitted that the NSA had been engaged in illegal "overcollection" of Americans' domestic communications.

Though some bloggers and radio hosts may have overreacted to the DHS memo, it was heartening to see conservatives finally show concern over possible abuses by the national security bureaucracy.

But their level of outrage shouldn't depend on whose ox is getting gored — constitutional privacy shouldn't be a Red Team/Blue Team issue. As the National Surveillance State grows, the need for new checks and balances has never been greater.

For a glaring example, with regard to the pervasive secrecy of his predecessors, President Obama has stunningly not only continued to invoke state secrets to order judges to close down lawsuits, but has gone further than Mr. Bush by claiming total government immunity from litigation by citizens protesting illegal spying on our communications by the National Security Agency.

On April 3, Mr. Obama's Justice Department filed an answer to a federal lawsuit against warrantless wiretapping of Americans brought by the San Francisco-based Electronic Frontier Foundation, which has been the lead litigator concerning lawless Bush, and now Obama, violations of our privacy.

In Jewel v. NSA, five plaintiffs charge that their telecommunications carrier, AT&T, gave the NSA - with its vast surveillance technology - information about their communications. (There also are other lawsuits by indignant Americans in state courts against telecoms cooperating with NSA.)

Attorney General Eric H. Holder Jr. - who certainly didn't act on his own initiative - began Mr. Obama's response by insisting that just allowing the case to continue "would cause exceptionally grave harm to national security."

However, Mr. Obama, during his presidential campaign, vigorously complained that the Bush administration "invoked a legal tool known as the 'state secrets' privilege more than any other administration to get cases thrown out of civil court."

Now the Obama administration "has for the first time claimed sovereign immunity against the privacy-protecting Wiretap Act and the Stored Communications Act," says Kevin Bankston of the Electronic Frontier Foundation. "In other words, this administration is arguing that the U.S. can never be sued for spying that violated federal surveillance statutes, whether the Foreign Intelligence Surveillance Act, the Wiretap Act or the Stored Communications Act."

Glenn Greenwald, a former constitutional lawyer, has become a persistently valuable analyst of the insatiable unconstitutional overreaching of the executive branch for the past eight years - and during Mr. Obama's first few months. On April 6 in salon.com, Mr. Greenwald confronted this "brand-new 'sovereignty immunity' claim of breathtaking scope - never before advanced, even by the Bush administration - that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is 'willful disclosure' of the illegally intercepted communications" by the government.

What does that mean? We have to prove somehow that the Obama team has "willfully" disclosed information it has lawlessly obtained on us? How can we know that it has? All this dragnet electronic surveillance is secret!

Another startled analyst of this brand-new Obama invention, Marc Ambinder, reminds us on the April 7 Atlantic Web site that "domestic communications are monitored holistically, with computers searching for patterns among the metadata. ... The NSA continues to work with telephone companies; it has enlisted the cooperation of companies that operate major Internet hubs, as a good chunk of foreign Internet traffic flows through routers controlled by American companies."

As James Bamford documents in "The Shadow Factory: The Ultra Secret NSA from 9/11 to the Eavesdropping of America," hundreds of thousands (at least) of our calls are continually monitored and, if patterns indicate, are put into bottomless government databases.

When the Bush administration urged passage of the FISA Amendments Act of 2008, which purportedly (but falsely) guaranteed judicial supervision of dragnet government electronic surveillance, Mr. Obama, then a senator, was so enraged he threatened to filibuster the bill. Then he voted for it, but he pledged to work against the law's immunization of telecom companies from lawsuits for their complicity with the NSA.

Yet during the confirmation hearing to be Mr. Obama's attorney general, Mr. Holder supported this protection of the telecoms from lawsuits. So now Mr. Obama does as well. One of the biggest whoppers of the Bush-Cheney years was Defense Secretary Donald H. Rumsfeld's grim charge that "the worst of the worst" were detained at Guantanamo Bay. Yet in February 2006, a Seton Hall Law School report - using the Defense Department's own records - demonstrated that just 8 percent of Guantanamo Bay prisoners were accused of being al Qaeda combatants.

Mr. Obama's solemn vow that his administration would be the most transparent in our history qualifies him, through his trumping of George Orwell's "1984" - in this and other invocations of absolute government secrecy - for the Donald H. Rumsfeld Obfuscation Prize.

For another example of this "new" Mr. Obama, to be followed up later, we still have CIA renditions of terrorism suspects to other countries - with those countries' assurance that they won't torture the suspects we send.

That's the very same false promise former Secretary of Defense Condoleezza Rice used to intone ritualistically.

Passed by Congress in 2005 - without any debate - Real ID is nothing more than an attempt by Congress to strong-arm the states into accepting and funding a national ID scheme. It requires states to produce new, standardized driver's licenses with machine-readable technology, and to create databases that hold copies of American citizens' sensitive identity documents. The tab for all of this is expected to be nearly $17 billion, with the state governments forced to shoulder the majority of the financial burden.

Earlier this year, the Pennsylvania House unanimously passed legislation barring the implementation of Real ID. The Senate is expected to consider similar legislation this fall.

In this tight economy, it is necessary for everybody, including members of Congress and state officials, to tighten their belts and make budgetary decisions based on priorities. States should not be forced to change their priorities or raise taxes and fees because of an unfunded federal mandate - especially not one that offers false security at the expense of our privacy and civil liberties.

Gov. Edward Rendell knows Pennsylvania's priorities better than Congress and federal bureaucrats in the Department of Homeland Security. He has made it a priority to improve the state's infrastructure. The governor has committed significant financial resources to rebuilding 411 of the state's 6,034 structurally deficient bridges. At least when money goes to infrastructure like bridges, taxpayers get something they can use in return.

Gov. Rendell recently began his tenure as chairman of the National Governor's Association. His "Chair's Initiative" will focus on similar policies: Strengthening infrastructure investment across the country. After last year's bridge collapse in Minneapolis, which claimed 13 lives, this is a clearer way to protect citizens and save lives than implementing the Real ID boondoggle.

The states' revolt against Real ID is unprecedented in modern American history and it demonstrates the breadth of the opposition. In states across the country, political leaders from both the left and the right have rejected this dangerous and unworkable program.

Real ID suffers from serious flaws that will affect the rights of every American. It mandates that every state's database - containing Social Security cards, copies of birth certificates, etc. - be linked and accessible to tens of thousands of DMV employees.

By making our personal information accessible to countless individuals across the country, Real ID exposes it to misuse and identity theft. In addition, the new driver's licenses created by Real ID will contain a machine-readable component, allowing the government to track and monitor law-abiding citizens like we are criminals on parole. Any way you look at it, the Real ID national ID scheme is a bad law that needs to be scrapped. It is enormously expensive, offers little to no benefits, and places our personal information at risk for use in identify theft.

The Pennsylvania Senate should follow the lead of the House and send a strong and clear message to Congress that Pennsylvanians will not be bullied into accepting an unfunded surveillance mandate like Real ID.

Gov. Rendell should join in by focusing on his priorities for Pennsylvania while rejecting the federal government's plan to increase tracking and surveillance of all Americans.

Last month, the House of Representatives passed the FISA Amendments Act of 2008, Congress's latest response to President Bush's demands for expanded eavesdropping authority. The Democratic leadership, seemingly intent on avoiding real debate on the proposal, scheduled the final vote just a day after the bill was introduced in the House. Touted by Democratic leaders as a "compromise," it was supported almost unanimously by House Republicans and opposed by a majority of Democrats.

The 114-page bill was pushed through the House so quickly that there was no real time to debate its many complex provisions. This may explain why the telecom immunity provision has received so much attention in the media: it is much easier to explain to readers not familiar with the intricacies of surveillance law than the other provisions. But as important as the immunity issue is, the legislation also makes many prospective changes to surveillance law that will profoundly impact our privacy rights for years to come.

Specifically, the new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it. So the telecom immunity stuff is just the smoke; let's take a look at the fire.

The importance of judicial scrutiny

The most fundamental question in the FISA debate is whether judicial oversight will be required when the government spies on international communications originating on American soil. FISA has never limited spying on purely foreign communications, but under current law, the government must obtain court approval to tap a phone line or fiber optic cable in the United States, even if the other end of the communication is abroad. An application for a FISA warrant must specify the person or organization being targeted and present evidence that the target is an "agent of a foreign power," such as the Chinese government or Al Qaeda.

The Bush administration has chafed at these restrictions, insisting that the president has the inherent authority to eavesdrop on suspected terrorists without court oversight. Director of National Intelligence Mike McConnell argues that that the FISA process is so cumbersome that it impedes the intelligence community's efforts to spy on terrorists.

Civil libertarians disagree, noting that FISA sets a lower bar for approving surveillance than the process for obtaining ordinary criminal warrants. And in emergency cases, FISA allows the government to begin spying immediately and seek a warrant after the fact. Most importantly, civil liberties groups emphasize that without judicial oversight, there is no way to know if the government is respecting any limits that Congress establishes.

Consider, for example, the case of National Security Letters, administrative subpoenas that the Patriot Act allows the FBI to issue without court oversight. Last year a government audit last year found hundreds of cases in which the FBI had issued NSLs without following even the permissive rules of the Patriot Act. Civil libertarians warn that similar corner-cutting is inevitable if the NSA is allowed to choose eavesdropping targets without judicial scrutiny.

No individual warrants for international calls

When it comes to judicial oversight of domestic-to-foreign calls, the legislation the House passed last month is an unambiguous victory for the White House and a defeat for civil libertarians. The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge. Moreover, the judge's review of the government's "certification" is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification "contains all the required elements," that the targeting procedures are "reasonably designed" to target foreigners, and that minimization procedures have been established.

Crucially, there appears to be no limit to the breadth of "authorizations" the government might issue. So, for example, a single "authorization" might cover the interception of all international traffic passing through AT&T's San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly "targeted" at foreigners.

The House legislation also drastically extends the timeline for reviewing surveillance activities, potentially allowing the government to commence eavesdropping and then drag out judicial review for months. Under existing law, the government must obtain judicial approval within 72 hours of the start of emergency wiretapping. In contrast, the judicial review of "certifications" can stretch out as long as four months. After beginning eavesdropping, the government has a week to submit its "certification" to the FISA court, which has 30 days to review the application. If the judge finds problems with the certification, the government can continue eavesdropping for another 30 days before it is required to comply with the order. And the government can buy still more time by filing an appeal to the FISA Court of Review. The appeals court may take as long as 60 days to make its decision, and the government will often be allowed to continue eavesdropping throughout the process of judicial review. This means that in many cases, the government will have completed its spying activities long before the courts reach a decision on its legality.

No "targeting" Americans

The legislation does provide modestly enhanced protections for Americans living overseas. The "authorizations" described in the previous section are only available when they "target" those who are not American citizens or legal residents. When the target of an eavesdropping program is an American, the government must satisfy more stringent requirements, including the traditional requirement that the target is an "agent of a foreign power." The surveillance also must cease within seven days if judicial approval for it is not forthcoming.

This section is a modest restriction on the government's prior eavesdropping powers. Traditionally, FISA did not govern purely overseas eavesdropping activities, even if they targeted American citizens. Under the new legislation, the government will need court approval to "target" Americans overseas, even when the surveillance is conducted overseas.

However, as a practical matter, this enhancement of Americans' privacy rights may prove extremely limited. The government may not "target" Americans under the broad "authorizations" discussed in the previous section, and in some cases the government may discard information obtained about Americans as part of the required "minimization" procedures, but the government would retain significant latitude to decide which information it retains. The paradoxical consequence is that broader wiretapping orders may be approved more easily than narrower ones. For example, the government could not unilaterally "authorize" the "targeting" of a particular San Francisco resident's international communications. However, it could "authorize" a dragnet surveillance program that intercepted the international communications of all San Francisco residents under the pretext that it was "targeting" any foreign terrorists who might happen to communicate with San Francisco residents.

This is particularly troubling when we remember that in 2002, the Foreign Intelligence Surveillance Court of Review held that FISA does not prohibit coordination between foreign intelligence gathering and domestic law enforcement. That suggests that the FBI could ask the NSA to tailor its filters to intercept evidence of Internet gambling, copyright infringement, or other ordinary crimes. The Americans whose communications were turned over could not be the "target" of the surveillance, but the House legislation requires only that foreign intelligence gathering be "a significant purpose" of eavesdropping programs. If a terrorist surveillance program also catches American citizens who are gambling or infringing copyright law, that's even better!

Other provisions

As has been widely reported, the legislation would grant broad, retroactive immunity to firms that participated in the president's warrantless surveillance program. The bar for granting immunity is extremely low: to receive immunity, the firm must merely demonstrate that it had received a letter from the government stating that the program was lawful. Since we already know that the program participants received such letters, there is no practical difference between this standard and blanket immunity.

The legislation expands the list of people who can be spied on to include those engaged in "the international proliferation of weapons of mass destruction." And curiously, it has an extremely broad definition of "weapons of mass destruction." It includes not only nuclear, chemical, and biological weapons, but also "any explosive, incendiary, or poison gas that is designed, intended, or has the capability to cause a mass casualty incident." As Wired's Jason Sigger points out, this is significantly broader than the traditional definition. The legislation mandates that the Inspectors General of each agency involved in FISA surveillance prepare reports to Congress detailing the nature and extent of post-September 11 surveillance activities.

Democratic leaders have made much of a provision designating FISA (along with ordinary criminal wiretapping procedures) as the "exclusive means" for intercepting electronic communications. But as a ruling last week made clear, this provision is little more than window dressing. Republican-appointed judge Vaughn R. Walker ruled last week that the 1978 FISA statute established "the exclusive means for foreign intelligence surveillance activities to be conducted." If the president ignored the exclusivity provisions of the current iteration of FISA, it's not clear what is accomplished by adding another one.

Compromise or capitulation?

Democratic leaders have worked hard to portray the legislation as a compromise, but close examination of its provisions suggests that it is an unvarnished victory for President Bush and his allies in Congress. The legislation eliminates meaningful judicial oversight of eavesdropping between Americans citizen and foreigners located overseas and effectively legalizes dragnet surveillance of domestic-to-foreign traffic. It stretches out the judicial review process so much that the government will in many cases be able to complete its surveillance activities before the courts finish deciding on its legality. And Democratic leaders have capitulated on the immunity question, agreeing to language that would almost certainly lead to retroactive immunity for lawbreaking telecom companies.

Many supporters of Barack Obama were dismayed last month when he announced that he would support the legislation. Indeed, more than 20,000 have joined a group on his campaign website urging him to reject the bill; the group is now the largest on his website. But thus far, Obama has maintained his support for the bill.

Last week, an Obama surrogate insisted that "with FISA expiring," the bill was the best Democrats could hope to get. The only problem is that FISA isn't expiring. It was enacted in 1978 and is not scheduled to sunset. The Protect America Act did expire in March, but given that the Bush administration managed to prevent terrorist attacks under FISA for almost six years until last summer's passage of the Protect America Act, it's hard to be too alarmed about living under FISA again for the final six months of Pres. Bush's term.

The Democrats' capitulation is particularly puzzling because, as we've pointed out before, the Democrats' firm stance on FISA this Spring turned out to be a political asset, not a liability. When House Democrats called Pres. Bush's bluff and allowed the Protect America Act to expire in March, it got a wave of positive coverage from the media, which pointed out that the PAA's expiration would have little effect on the government's ability to spy on terrorists. Now that Democratic leaders are switching sides yet again, we've seen the re-emergence of unflattering coverage focusing on the Democrats' weakness on national security issues and lack of party unity. Protecting civil liberties ought to be a matter of principle, but even if Democratic leaders are unmoved by civil liberties concerns, one might have expected them to stand up to the White House based on purely political motivations.

Civil libertarians' last stand against expanded government surveillance will occur in the Senate, in a vote that is expected to occur this week. So far, the determined opposition of a small group of Senators led by Chris Dodd and Russ Feingold has managed to stall the legislation for a couple of weeks. Dodd has signaled that he will continue using every weapon at his disposal to stop the legislation. But with Democratic leaders lining up in support of the bill, Dodd and Feingold face an uphill battle.

The Immigration Reform and Control Act began all this in 1986. It conscripted U.S. employers into immigration law enforcement by requiring them to collect I-9 forms from new hires. Ten years later, the "Basic Pilot" program began. Renamed "E-Verify" last year, its 52,000 participants--less than 1 percent of all employers--submit worker information to a government Web site for comparison against Social Security Administration and Department of Homeland Security databases.

When E-Verify cannot confirm a worker's eligibility, it issues the employer a "tentative nonconfirmation." If nonconfirmed workers do not present themselves at federal government offices within eight days for review of their papers, the government issues a "final nonconfirmation," barring them from working at their new jobs.

If E-Verify goes national, get used to hearing that Orwellian term: "nonconfirmation." In December 2006, the SSA's Office of the Inspector General estimated that the agency's "Numident" file -- the data against which Basic Pilot checks worker information -- has an error rate of 4.1 percent. With 55 million new hires each year, that is about 11,000 tentative nonconfirmations per workday in the U.S.

Illegal immigrants would respond dynamically, not passively. More would collude with employers to work under the table, avoiding E-Verify, other regulations and taxes all at the same time. Others would deepen the minor identity frauds they commit today.

E-Verify can pick up multiple uses of given identities and "nonconfirm" those identities. This would make it more difficult for illegal immigrants to work, of course, but it would have the same effect on American citizens. Victims of identity fraud today encounter financial difficulties; under national E-Verify, they would be unemployable.

Even if a national employment eligibility verification system were workable, it is not a system we should want. Once built, this government monitoring system would soon be extended to housing, financial services, and other essentials to try to get at illegal immigrants. It would also be converted to policy goals well beyond immigration control. Direct regulatory power over American citizens would flow to the federal government. Even more information about Americans' lives would flow into federal government databases. And sensitive personal data would be exposed to more security threats.

Electronic employment eligibility verification would immerse America's workers and businesses in Kafkaesque bureaucracy and erode the freedoms of the American citizen, even as it failed to stem illegal immigration. Ultimately, there is no alternative but for Congress to repair the broken immigration system by aligning legal immigration with our nation's economic demand for labor.

In spite of its growing unpopularity, federal legislators are still pushing an arguably unconstitutional national ID law called the REAL ID Act.

The governor now has a chance to stand up for the people of South Carolina, and help restore some important constitutional principles.

Last year, South Carolina's legislature passed a law barring the state from implementing REAL ID. This particular federal boondoggle would put basic identity documents into nationally accessible government databases and promote tracking of law-abiding citizens like they were criminals on parole.

But the U.S. Department of Homeland Security now threatens to make air travel and entry into some federal buildings inconvenient if Gov. Sanford doesn't pretend that South Carolina might still implement the federal law. They want him to request an extension of the May 11 statutory deadline for compliance.

The case resembles a similar instance of strong-arming in the early 1990s, when Congress passed a law requiring the state of New York to dispose of radioactive waste according to federal prescriptions or "take title" to the waste. If state officials didn't do what the federal government said, they would have the burden of owning all this waste dumped in their laps.

In 1992, the Supreme Court ruled on the case, issuing the first in an important line of decisions that is beginning to restore balance to the state-federal relationship. The federal law violated the constitutional structure of our governmental system, the court said, by attempting to "commandeer" the state into implementing a federal program.

States are sovereign entities, not administrative outposts of the national government. Allowing the federal government to commandeer states would blur lines of responsibility, requiring state officials to raise taxes and make unpopular decisions on behalf of federal officials who really should be accountable. If the federal government wanted to take care of radioactive waste, the federal government should have figured out how to do it and how to pay for it.

The same applies to the national ID program in REAL ID. If the federal government wants to have a national ID system, the federal government should figure out how to do it and how to pay for it. Congress never even had a hearing to assess the costs, the complexities, or the privacy consequences of the REAL ID Act, much less whether the United States should have a national ID system at all. Instead, the federal government is trying to foist all this on the states.

If South Carolina doesn't fall in line, the Department of Homeland Security threatens to attack South Carolinians' right to travel.

These problems will be dumped in the laps of South Carolina's leaders, like the radioactive waste the feds wanted to dump on New York.

Another way to look at it is as a form of hostage-taking. If you don't implement our national ID law, the federal government is saying to Gov. Sanford, we will make life miserable for the citizens of your state.

That's unfair, and it's probably unconstitutional.

Federal politicians didn't give up on trying to commandeer state governments after the radioactive waste case. In a later case, Congress tried directly, requiring state officials to implement the Brady gun control law. The court struck that down, too.

With the REAL ID Act, the feds are at it again. The governor should use this opportunity to seek another Supreme Court ruling that respects the state-federal balance.

Instead of backing down and abandoning his principled approach to government, the governor should sue the Department of Homeland Security under the 10th Amendment.

In standing up for the residents of South Carolina, he has a good chance to restore constitutional principles for all states. His constituents are not pawns in a power game.

And the South Carolina government is not a bureaucratic outpost of the federal government.

Broad immigration reform failed before Congress thoroughly considered national EEV, but the lines of debate have been drawn. Advocates in Congress will try to attach a nationwide worker registration system to any immigration bill Congress considers, and the Bush administration recently announced steps to promote such a system.

A mandatory national EEV system would have substantial costs yet still fail to prevent illegal immigration. It would deny a sizable percentage of law-abiding American citizens the ability to work legally. Deemed ineligible by a database, millions each year would go pleading to the Department of Homeland Security and the Social Security Administration for the right to work. By increasing the value of committing identity fraud, EEV would cause that crime's rates to rise.

Creating an accurate EEV system would require a national identification (ID) system, costing about $20 billion to create and hundreds of millions more per year to operate. Even if it were free, the country should reject a national ID system. It would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes. "Mission creep" all but guarantees that the federal government would use an EEV system to extend federal regulatory control over Americans' lives even further.

In 1976, a special Senate committee revealed massive abuses of power by the FBI, the National Security Agency and other government agencies. One notorious case was the FBI's attempts to undermine and discredit Dr. Martin Luther King Jr. The bureau tapped King's phones and bugged his hotel rooms. The FBI used the information in attempts to discredit King with churches, universities and the press.

For three decades, the NSA obtained copies of virtually all telegrams to and from the United States without court oversight. The NSA also tapped international phone calls. From 1967-73, the NSA kept a "watchlist" of surveillance targets that included many Americans.

FISA was carefully designed not to hamstring legitimate intelligence gathering. FISA even allows the government to begin spying immediately and seek retroactive judicial approval within 72 hours. Most importantly, FISA left overseas surveillance activities completely exempt from judicial oversight.

But in early 2007, the FISA court reportedly ruled that a warrant is needed to intercept communications between two foreigners as those communications pass through the United States. Technological changes have made that an increasingly common occurrence, and the Bush administration seized on the ruling to justify the hasty passage of the Protect America Act. But this law went far beyond clarifying the foreign-to-foreign issue. In effect, it once again gave the NSA unfettered authority to intercept domestic-to-foreign communications without court supervision.

The Protect America Act was set to expire this past weekend, but the bill passed by the Senate would make its surveillance powers permanent.

The Senate also granted another item on the president's wish list: retroactive immunity for telecom companies that participated in the government's warrantless surveillance programs during the past seven years. Those companies are now facing customer lawsuits for violating their privacy, and the White House is doubtless worried that unless the suits are quashed, they could reveal embarrassing details about the NSA's illegal activities.

But granting retroactive immunity would seriously jeopardize Americans' privacy because it would leave telecom companies with no real incentive to stand up for their customers' privacy the next time the government asks them to break the law. It would also be a slap in the face to those companies that risked the wrath of the Bush administration by refusing to participate in the NSA's illegal activities.

Modern computer technology makes the potential for the abuse of unfettered executive power much greater today. Judicial oversight is at least as important in the 21st century as it was in the 20th, and Congress should resist Bush's demand for unchecked spying powers.

The issue isn't whether Congress should block cooperation between telecom companies and the government when the National Security Agency wants to engage in eavesdropping on American soil. The debate is about whether that cooperation should be subject to judicial oversight, as the law has required for the last 30 years, or whether instead the telecom companies can simply ignore the law when the president asks them to. Last November, former Attorney General John Ashcroft suggested that firms that participated in warrantless surveillance programs "based on explicit assurances from the highest levels of the government" should be let off the hook.

Accepting this argument, as the Senate did yesterday, undermines the fundamental purpose of the warrant process, which is to ensure independent review of domestic spying activities. And the law was quite clear on this point. FISA makes it a criminal offense to "engage in electronic surveillance under color of law except as authorized by statute." The law included a variety of exceptions, but until the passage of the Protect America Act last summer, none of them involved "assurances from the highest levels of government." Firms like Verizon and AT&T have small armies of lawyers who know this area of law as well as anyone on the planet. They hardly needed the president's help to interpret it. If the firms' actions were in compliance with the law, they'll have the opportunity to prove that in court. And that is where the fight should play out.

Press reports suggest that the Bush administration has created at least two warrantless surveillance programs with the cooperation of major telecom companies. The first, reported by the New York Times in 2005, involved the warrantless interception of several hundred Americans' international phone calls and e-mails. Under the second, first reported by USA Today in 2006, Verizon and AT&T (then called SBC) reportedly provided the government with access to the domestic calling records of its customers. Qwest CEO Joseph P. Nacchio declined to participate in the latter program, believing that doing so would be against the law. Nacchio now alleges that the NSA retaliated for his refusal by canceling an unrelated, lucrative government contract. (He faces unrelated charges of insider trading.) Last summer, the Heritage Foundation's Matthew Spalding insisted that giving amnesty to illegal immigrants would be "deeply unfair to the millions who obey the law and abide by the rules."

By the same token, letting AT&T and Verizon off the hook would not only be unfair to the customers whose privacy they violated, it would also be unfair to Qwest, which was put at a competitive disadvantage for obeying the law. Nor is retroactive immunity necessarily constitutional, at least as long as the telecoms don't have to give some compensation to the people who filed the lawsuits that would be scratched by the Senate's bill.

Republican senators have argued that Verizon and AT&T are unable to defend themselves adequately because the Bush administration is preventing them from disclosing classified documents that could exonerate them. But the courts have a long track record of reviewing sensitive information in private and dismissing cases that cannot be litigated fairly without exposing state secrets. Last year, the U.S. Court of Appeals for the 9th Circuit dismissed a lawsuit against the Bush administration for warrantless surveillance because the plaintiffs' case hinged on the contents of a classified document. The court held that the case could not be litigated without exposing state secrets and so it would not be litigated at all. The 9th Circuit has so far refused to dismiss on state secret grounds the pending class action lawsuit against AT&T for its participation in warrantless surveillance. But the court has signaled that it is open to reconsidering this decision as the case proceeds. If the House follows the Senate, the judges won't have the opportunity. The telecoms won't have to admit they broke the law or compensate their customers. What sort of incentive does that give them to refuse the next time the government asks them to break the law?

Now, the Senate bill will move to a conference committee to be reconciled with House legislation that does not include a free pass for the telecoms or authorize warrantless surveillance of Americans' international communications. With the Democrats controlling both houses of Congress, one might expect the conference committee to side with the House. But the Democratic leadership's heart doesn't seem to be in the fight. Senate Majority Leader Harry Reid, D-Nev., seemed ready to capitulate after yesterday's vote when he said the bill had been "improved" by the Senate and that he "preferred to move on to other legislation."

Particularly disappointing was Hillary Clinton's decision to skip yesterday's votes. On the campaign trail, Sen. Clinton has argued that her years of Washington experience give her a unique ability to fight back against Republican hardball tactics. Those skills were sorely needed in the Senate yesterday, but she didn't fit the debate into her schedule. Some Democratic voters may wonder if this is the kind of leadership she would show as president. In contrast, Barack Obama voted with civil libertarian Russ Feingold, D-Wis., on all six amendments and the cloture vote, only missing the vote on the final bill after the outcome had become clear. More Democrats should have followed Feingold. If Congress wants its laws to be followed in the future, it cannot give a free pass to companies that broke the law in the past. Republicans are clearly forgetting this. House Democrats should stand up to them.

The act was scheduled to expire on Feb. 1, but it was extended for 15 days — until Friday — while the House and Senate thrash out competing bills to keep the program alive.

Congress and the White House are finally negotiating, after grappling with this threshold constitutional question: Who gets to decide whether the program strikes the right balance between civil liberties and national security — that is, whether it violates the Fourth Amendment's ban on "unreasonable" searches?

The Bush administration's position had been consistent and uncompromising. Former Attorney General Alberto Gonzales put it this way: Article II of the Constitution says, "The executive power shall be vested in a president" who "shall be commander in chief" of the armed forces. That power, argued Gonzales, trumps any congressional action during time of war.

Presumably, if wartime security interests are implicated, the president can unilaterally authorize wiretaps of Americans anywhere, indefinite detention of U.S. citizens, library records searches, national security letters, secret CIA prisons, "enemy combatant" declarations, military tribunals and interrogation techniques that may have violated our treaty commitments.

Not so, said Justice Robert Jackson, concurring in Youngstown Sheet & Tube vs. Sawyer —the 1952 Supreme Court case denying President Harry Truman's authority to seize the steel mills. First, wrote Jackson, when the president acts pursuant to an authorization from Congress, "his authority is at its maximum." Second, when Congress has neither granted nor denied authority, "there is a zone of twilight in which (the president) and Congress may have concurrent authority, or in which its distribution is uncertain." But third, where the president takes measures incompatible with the express or implied will of Congress, "his power is at its lowest."

The secret Terrorist Surveillance Program fell in the third category: The president acted in the face of an express statutory prohibition in the Foreign Intelligence Surveillance Act. Most presidents, when they think a law is outdated or ineffective or otherwise ill advised, ask Congress to amend or repeal the law. President Bush took a shortcut: He attempted for years to repeal FISA by himself by ignoring its provisions.

Recently, in a series of decisions — Hamdi vs. Rumsfeld (2004), Rasul vs. Bush (2004) and Hamdan vs. Rumsfeld (2006) — the Supreme Court has again rejected the notion that the executive may do pretty much as it pleases in wartime, regardless of congressional input. As a result, the Bush administration was dragged kicking and screaming into seeking authorization from Congress — for the Detainee Treatment Act (2005), Military Commissions Act (2006), the Protect America Act (2007) and now two pending bills to reautho rize the Terrorist Surveillance Program (the RESTORE Act in the House and the FISA Amendments Act in the Senate).

Perhaps Congress will make the wrong policy choices as it reconsiders the program. If so, a constitutional challenge from one or more civil liberties groups is highly likely. But misguided policy judgments by Congress will be difficult to challenge on constitutional grounds under the rubric contained in the Youngstown court decision. After all, the president's authority is "at its maximum" when he acts with express congressional authorization.

What that means, of course, is that abiding by the Constitution will not always shield us from bad laws. Nonetheless, even if the Constitution is not a sufficient guidepost, it is certainly a necessary guidepost.

For many years, we were at risk of losing important civil liberties through unchecked transgressions by the executive branch. Maybe we are still at risk. But thanks to the media, the courts and — belatedly — an energized opposition in Congress, the administration has finally resigned itself to a semblance of congressional oversight, even if judicial scrutiny remains inadequate.

The president's bogus claims of limitless executive power are, for now, on hold. That's the right constitutional precedent even if it ultimately produces the wrong policy outcomes. Longer term, the precedent is more important than temporal policy judgments. Justice Sandra Day O'Connor's plurality opinion in the Hamdi case nicely captured the key principle: "Whatever power the U.S. Constitution envisions for the Executive ... in time of conflict, it most assuredly envisions a role for all three branches of government when individual civil liberties are at stake."

Bush's predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of "roving wiretaps." The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so "in a methodical way that preserves our freedoms." Senate Majority Leader Trent Lott vowed that Congress would not "rush to a final judgment" before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Today's Democratic Congress has been far less protective of Americans' privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about "rushing to judgment." Indeed, both houses of Congress approved the White House's preferred legislation with minimal changes within three days of its introduction.

Why are today's Democrats less concerned with civil liberties than Republicans were a decade ago? Democratic leaders would doubtless point to the 9/11 attacks. Those attacks have certainly contributed to a changed political climate, but they don't justify Congress's panicky reaction to the president's demands. Congress had already expanded eavesdropping powers several times since 9/11. Congress approved new wiretapping authority with the Patriot Act in 2001, and approved further expansions later in 2001 and in 2002, 2004, and 2006. If the new powers the president was seeking weren't urgent enough to include in those revisions to the law, it's hard to believe they were an emergency in August 2007.

Moreover, the powers Congress granted last summer are far broader those sought by the Clinton administration in 1996. The "roving wiretaps" Clinton requested in 1996 and finally received in 1998 merely allowed investigators to obtain a single warrant to bug multiple phones used by a specific individual. In contrast, the Protect America Act completely eliminates the warrant requirement for surveillance "concerning persons reasonably believed to be outside of the United States" — even if one party to a call is an American citizen and the wiretap occurs on American soil. The attorney general is required to disclose to a secret court the general procedures used to choose wiretapping targets, but no judge reviews the list of specific targets to verify that the law is being followed. This evisceration of judicial review is an invitation to future abuses.

The lone virtue of the Protect America Act is that the powers it granted are now set to expire in mid-February. As this revised deadline approaches, Speaker Nancy Pelosi and Majority Leader Harry Reid will once again face pressure to rush the White House's preferred legislation out the door. The president will claim that failure to act before the Protect America Act sunsets will undermine the government's ability to eavesdrop on terrorists.

It's an ominous claim, but it's not true. The Protect America Act allows the administration to "authorize" eavesdropping programs for a year at a time. That means that the government's various warrantless surveillance activities will continue to operate at least through August. And of course, if the need for new wiretaps arises after the act sunsets, the administration still has the opportunity to file for warrants under the Foreign Intelligence Surveillance Act (FISA). FISA even allows the government to begin surveillance first and apply for an emergency warrant after the fact.

In short, the administration will have ample authority to intercept terrorist communications for at least the next six months. As they shepherd FISA reform through Congress, Pelosi and Reid would do well to heed the advice of one of Pelosi's predecessors: "The goal here is not to allow the terrorists to pressure us into suspending the very freedoms that make America precious." Those words are as true today as when Newt Gingrich said them in 1996.

Under the bill, the Department of Health's Office of Vital Records and the Department of Motor Vehicles would develop and implement a plan to provide Virginia residents with appropriate identity verification. This would let Virginians avoid the national ID system, a network of government databases containing basic identity information, including scanned copies of Social Security cards and birth certificates.

With so many states on record opposing REAL ID, the feds have been shifting through numerous stories trying to justify their national ID. First, they said it was a national security tool. But by now everyone realizes how easy it would be for criminal organizations and terrorists to avoid or defeat a national ID system.

Then REAL ID became a way to control illegal immigration. But it has the same defects here too. Illegal immigrants will use a mix of forgery, fraud, and corruption at any motor vehicles bureau in the country to get around REAL ID. Driving illegal immigrants further into criminality deepens the problem rather than fixing it. And should law-abiding American citizens really have to carry a national ID to get at illegal immigrants? Just who is the criminal here?

Next, we were told that having a national ID was about identity fraud. But putting our personal information, Social Security Numbers, and basic identity documents like birth certificates into a nationwide string of government databases is a recipe for more identity theft, not less.

Wen the Department of Homeland Security came out with the final REAL ID regulations last month, a top official threw the department's final Hail Mary, suggesting that REAL ID could be used to control access to cold medicine. That's right: cold medicine. The lesson? Once a national ID system is in place, the federal government will use it for tighter and tighter control of every American.

The DHS has admitted that not a single state will comply with the REAL ID law by the May 11, 2008 deadline. Even today, nobody knows how to build a massive database system that protects Americans' privacy and data security. So the department is giving states extensions until the end of 2009, just for the asking. It is also threatening to send air travelers to secondary search at airports if their states haven't applied for those extensions and kissed the DHS ring.

Why the brinksmanship? Here's one reason: The top DHS officials involved in REAL ID will be leaving their jobs by the end of the year. A new administration takes over in January 2009, and they intend to be ensconced all around Washington, D.C. in lobbying and consulting jobs by then. Their prospects rise if they have a program to lobby for, and they want to score a victory.

REAL ID isn't about national security. It isn't about illegal immigration. It isn't about identity fraud, or even cold medicine. It's about Washington politics. Federal bureaucrats want to coerce states like Virginia into building a multi-billion dollar system for identifying, tracking, and controlling law-abiding citizens.

Knowing how the Washington bureaucracy works against our nation's founding principles of limited government and individual liberty, conservative leaders across the country have joined with others to call the Department of Homeland Security's bluff. With enough states saying "Hell No" to the REAL ID mandate, the feds will back down from their threat to make air travel inconvenient. The airline industry will be up on Capitol Hill faster than you can say "You are now free to move about the country." Congress will back the DHS off.

The country will be the better for it if the revolutionary spirit revives in the Old Dominion. The state should reject the privacy and security nightmare known as the REAL ID Act.

Starting Thursday, Homeland Security will require U.S. and Canadian citizens to present a government-issued photo ID along with proof of citizenship, such as a birth certificate or naturalization certificate, when they enter the country. Clamping down on border crossings, such as the Ambassador Bridge and Detroit-Windsor tunnel, is motivated by a protective impulse, but its costs outweigh its small security benefits.

In 2004, Congress created the Western Hemisphere Travel Initiative, requiring detailed document checks of every traveler into the United States. A year ago, the Homeland Security Department began to implement the initiative, requiring passports from citizens entering by air from Canada, Mexico and Bermuda. Bedlam ensued.

The State Department was quickly backlogged with nearly 3 million applications for passports. Facing delays of three months, Americans missed business travel and vacations. Even those who paid for expedited processing didn't receive their passports on time, and they flooded federal lawmakers' offices with complaints. The three-year cost of issuing additional passports came to $944 million.

Congress got the message. It recently delayed further implementation of the initiative. But Secretary Michael Chertoff announced earlier this month that paperwork requirements at the border would be ramped up. More than 60 million border crossings this year will bear new paperwork requirements. Delays will run many hours. Cars and trucks will queue at the border for miles.

Chertoff recently called his department's efforts "reasonable, measured but nevertheless determined steps to getting better security." If only they were. Any group that would like to attack us can get someone here legally, avoid controlled borders or recruit within the country. There just aren't security gains to be gotten from inconveniencing millions of law-abiding American tourists and slowing our immensely beneficial trade with Canada, which amounted to more than $500 billion in 2006.

Security is hard, and the measures we take must cost-effectively foreclose the risks to our nation. But border checks on American citizens and national ID cards do not meet this test.

Checking American citizens' documentation along the Canadian border will be exorbitantly expensive. At a cost of billions -- directly and in foregone travel and trade -- the department stands at best to briefly delay whatever harms any group may seek for our country.

The Department of Homeland Security is in thrall to the terrorism strategy. Weak actors use terrorism to goad the strong into self-injurious overreaction. Among other things, overreaction dissipates the blood and treasure of the victims.

As the United States makes war overseas, we are spending billions of dollars to shrink from international trade and travel because of the fear that we may suffer attacks that can only amount to pin-pricks on the body politic. Effective terrorism counter-strategy requires much more judicious use of our security resources.