Let high court decide.

Byline: The Register-Guard

The American people have a right to know whether President Bush's warrantless eavesdropping program is legal - and, if it isn't, they deserve assurance that it will stop. Sen. Charles Schumer, D-N.Y., has introduced a bill that may provide citizens their best hope of resolving those issues.

Schumer's legislation would permit lawsuits by academics, journalists and others who assert they have refrained from making phone calls or sending e-mail messages to Iraq, Afghanistan and other countries because of "a reasonable fear" of eavesdropping by the National Security Agency under the domestic surveillance program ordered by the president after Sept. 11, 2001. Those suits would be heard by a special panel of federal judges whose decisions could be appealed directly to the U.S. Supreme Court.

Despite expressing profound misgivings when Bush's wiretapping first came to light, federal lawmakers have failed to demand a full-scale investigation of whether the program sidesteps the Constitution and the laws of the land.

Instead, the Senate's Republican leadership proposed legislation that would retroactively authorize not only the spying program that Bush has acknowledged, but any others that have not yet come to light. One bill, introduced by Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., would provide at least a modicum of judicial oversight from the Foreign Intelligence Surveillance Court. A breathtaking proposal by Sen. Mike DeWine, R-Ohio, would exempt not merely the NSA program, but all intelligence gathering, from laws requiring judicial oversight.

Even if a lightning bolt from the heavens were to bring this enabling Congress the courage to pass laws restricting spying on Americans, it's doubtful they would serve as an effective deterrent. This administration has proven that it has an expansive view of presidential powers.

When Bush signed legislation reauthorizing the USA Patriot Act last month, he added a provision clarifying that he was not obliged to obey its requirements that he keep Congress informed about how the government was using its extraordinary police powers.

When Congress passed a law barring torture of detainees, Bush added a provision in signing the bill that said he could ignore the law if he felt it was necessary to protect national security.

And, true to form, when the domestic eavesdropping program came to light, Bush insisted that his wartime powers gave him the right to ignore laws barring warrantless eavesdropping.

Schumer's proposal would take the issue of warrantless eavesdropping directly to the Supreme Court - a powerful check on executive authority in the United States' system of checks and balances. While the administration has shown it won't hesitate to defy Congress, it's doubtful that the executive branch is so brazen as to defy, either openly or in secret, the Supreme Court.

As Schumer has sagely observed, "We have a system of checks and balances, and in this case, when the stakes are so high, the Supreme Court should be the ultimate check."