Even though a federal judge ordered the Bush administration to allow Jose Padilla access to his lawyer over a month ago, they have yet to comply.

Mr. Padilla, an American citizen arrested on American soil, was labeled an "enemy combatant" and has been held in a Navy brig in South Carolina since June. Judge Michael Mukasey, of Federal District Court in Manhattan, ruled last month that Mr. Padilla should be allowed to meet with his lawyers. But the administration insists that Mr. Padilla is a "critical intelligence resource," and argues that its interrogation would be compromised if lawyers were allowed to speak with him. ["The Right to Council" NYT Editorial]

The right to counsel is guaranteed to all Americans by the sixth amendment to the Constitution - a part of the Bill of Rights - but the Bush administration seems to have decided that the Constitution isn't a binding law, but rather a list of suggestions that they aren't obligated to follow. Their refusal to comply with either the Constitution or a judicial order is perhaps one of the clearest signs yet that the administration considers itself to be entirely above the law.

SURVEILLANCE

Senate Rejects Privacy Project

By ADAM CLYMER

WASHINGTON, Jan. 23 — The Senate voted today to bar deployment of a Pentagon project to search for terrorists by scanning information in Internet mail and in the commercial databases of health, financial and travel companies here and abroad.

The measure placing restrictions on the development and use of the Total Information Awareness program (TIA) were included as an amendment to an omnibus spending bill, and passed the Senate without debate and by unanimous consent. The amendment doesn't entirely bar the TIA, but it does, at least, recognize that there are legitimate privacy concerns and the need for limitations on what something of this nature could be used for.

Under the legislation passed today, research and development of the system would have to halt within 60 days of enactment of the bill unless the Defense Department submitted a detailed report about the program, including its costs, goals, impact on privacy and civil liberties and prospects for success in stopping terrorists. The research could also continue if President Bush certified to Congress that the report could not be provided or that a halt "would endanger the national security of the United States."

The limits on deploying, or using, the system are stricter. While it could be used to support lawful military and foreign intelligence operations, it could not be used in this country until Congress had passed new legislation specifically authorizing its use.

While People For the American Way call this measure a victory, I tend to consider this more of a good "first step".  The allowance for research to continue if President Bush declares that it would endanger our national security to either halt the research or to provide a comprenesive report on the project is a bit too big of a loophole.  Given the Bush administration's well-demonstrated penchant for secrecy, I will be very surprised if he doesn't take advantage of this "out" that the amendment gives him. The stricter limits on using the system, however, are good to see.

It is also quite heartening to note that this amendment was sponsored by both Republican and Democrat Senators, and that the Senate as a whole chose to include this provision in the spending bill.  I think the unanimity of the decision sends the White House a clear message that TIA isn't going to go unchallenged.