JEFFREY ROSEN WRITES THAT CHECKS AND BALANCES ARE WORKING:

In the course of researching the state of liberty and security after 9/11, I’ve been especially struck by how restrained America’s legal response appears when contrasted with that of our European allies. Although they weren’t directly attacked, the countries of the European Union passed anti-terrorism measures during the past year that are far more sweeping than anything adopted in the United States. In October, France expanded the powers of the police to search private property without a warrant. Germany has engaged in religious profiling of suspected terrorists, a practice that was upheld in a court challenge. In Britain, which has become a kind of privacy dystopia, Parliament passed a sweeping anti-terrorism law in December that authorizes a central government authority to record and store all communications data generated by e-mail, Internet browsing or other electronic communications, and to make the data available to law enforcement without a court order. In May, the European Union authorized all of its members to pass similar laws requiring data retention.

The Bush administration has tried to emulate its European allies by expanding executive authority in similarly dramatic ways. It asserted that the president may designate citizens or aliens as enemy combatants and detain them indefinitely without judicial review. It claimed that the president may deport certain aliens based on secret hearings whose existence is withheld from the pressand the public. And it attempted to blur the legal lines that separate domestic law enforcement from foreign intelligence gathering, transforming the FBI into the equivalent of Britain’s domestic security intelligence agency, MI5.

What distinguished America from Europe, however, is how quickly all three of these extreme positions met with opposition from the other two branches of government.

Jeffrey Rosen has been thinking deeply about these issues since well before 9/11/2001 and this piece is well worth reading — as, I expect, his book on this subject will be.