Beware the tipping point.

Byline: The Register-Guard

A tipping point is defined as the critical point in an evolving situation that leads to a new and irreversible development.

Based on a powder-keg footnote in a recent memo by U.S. Attorney General Alberto Gonzales, the United States may be nearing a tipping point on civil liberties in its amorphous, open-ended "war against terror."

Gonzales' 42-page memo argues unconvincingly that Congress gave President Bush the power to investigate terror suspects using any tactics he chooses when it authorized him to use "all necessary and appropriate force" against al-Qaeda one week after the terrorist attacks on Sept. 11, 2001.

The memo, and Gonzales' underlying contention that the president has nearly unlimited powers in wartime, are affronts to America's system of checks and balances and the Constitution that protects the privacy of its citizens. The memo also runs starkly counter to the recent findings of the nonpartisan Congressional Research Service, which cast serious doubt on the legality of the president's decision to order the domestic eavesdropping program.

As Congress prepares to open hearings on the program next month, lawmakers must not overlook a footnote in Gonzales' memo suggesting that the administration does not need Congress to extend the USA Patriot Act in order to keep using the law's investigative powers against al-Qaeda terror suspects.

Using the same argument that Congress already has given Bush the authority to take whatever steps he deems necessary to pursue terrorists, the footnote suggests that Bush was authorized to employ the Patriot Act's sweeping surveillance powers before the law was even approved for the first time. By extension, this presumptuous logic suggests that Bush now doesn't need Congress to reauthorize the Patriot Act in order to continue wielding the same powers.

Notwithstanding subsequent qualifications by the Justice Department, that footnote, as well as Gonzales' entire memo, should clear the collective sinuses of lawmakers as they prepare to open their investigation into the eavesdropping program.

Perhaps the most remarkable aspect of Gonzales' audacious treatise is the suggestion that wartime presidents are essentially free to ignore laws put in place by Congress.

It's one thing to argue, as have a number of Bush's predecessors, that the Constitution authorizes presidents to order warrantless searches. It's quite another to imply that Bush, as a wartime president, can blithely ignore the Foreign Intelligence Surveillance Act of 1978, which outlines detailed requirements for domestic surveillance.

Now, the administration seems to be suggesting that it doesn't matter whether Congress reauthorizes the Patriot Act's full array of investigative powers because the president already has authority to wield those powers even if lawmakers let the law expire.

Since 9/11, lawmakers have cowered in the face of an overbearing and overreaching executive branch. Now, Congress must exercise its constitutionally mandated oversight role, and protect the checks and balances and civil liberties that make us a free and democratic nation. If it fails to do so, the tipping point may be at hand.