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Taking liberties

PRESIDENT BUSH IS WRONG to sacrifice Americans' civil liberties needlessly by resorting to a secret presidential order to authorize warrantless surveillance of phone calls and e-mails within the United States. The American way of life Bush is sworn to defend rests upon the rule of law and a constitutional separation of powers. No president should be allowed to create a law-free zone in which government agencies spy on people in this country without legal authorization from Congress and warrants from a court.

The chairman of the Senate judiciary committee, Republican Arlen Specter of Pennsylvania, is righting a perilous imbalance when he says he will call hearings early next year to scrutinize the legality and wisdom of allowing the National Security Agency to eavesdrop on citizens without a warrant.

Bush yesterday defended his 2002 presidential order permitting warrantless surveillance in the United States by saying it is his duty to protect Americans from terrorism. This argument deserves to be taken seriously. But Bush also has an obligation to defend Americans' rights under the Fourth Amendment to be secure against ''unreasonable searches and seizure" by government.

Bush needs to balance his duty to protect Americans from another Sept. 11 against his oath to preserve the Constitution.

That pledge obliges him to protect the citizen against the overweening power of the state. Nothing could be more genuinely conservative than a president's obligation to uphold the Fourth Amendment's guarantee of civil liberty.

As described in Friday's New York Times, the aim of Bush's order allowing warrantless wiretaps within this country was to enable the NSA to monitor the communications not only of primary terrorist suspects abroad, but also of people those suspects contacted, and of yet others who might be connected by phone or e-mail to an outward-rippling circle of persons targeted for surveillance.

There are two principal intelligence needs Bush's presidential order was meant to satisfy: to be able to track potential terrorist plots uninterruptedly from one suspect to another; and to have the capability of setting up new wiretaps without delay.

Under the 1978 Foreign Intelligence Surveillance Act, which was passed to protect Americans from being spied upon by government for political reasons, intelligence agencies already have the right to eavesdrop on a target of suspicion for 72 hours before obtaining a warrant from the special court that decides such matters. There may be a need to expedite the granting and reviewing of warrants, but there is no need to bypass the requirement for a court warrant. Neither intelligence agencies nor the president can be allowed to thwart the rule of law.

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