...the draft contains many troubling provisions. It would further expand intelligence surveillance powers into the traditional realm of law enforcement. Like a Senate bill soon to be taken up by the Judiciary Committee, it would allow foreigners suspected of terrorism to be watched as intelligence targets -- rather than subjects of law enforcement -- even if they could not be linked to any foreign group or state.

But it would go much further. It would allow intelligence surveillance in certain circumstances even when the government could not produce any evidence of a crime. It also would allow certain snooping with no court authorization, not only -- as now -- when Congress declared war but when it authorized force or when the country was attacked.

The result of such changes would be to magnify the government's discretion to pick the legal regime under which it investigates and prosecutes national security cases and to give it more power unilaterally to exempt people from the protections of the justice system and place them in a kind of alternative legal world. Congress should be pushing in the opposite direction.

Before the department asks Congress for more powers, it needs to disclose how it is using the ones it already has. Yet the Justice Department has balked at reasonable oversight and public information requests. In fact, the draft legislation would allow the department to withhold information concerning the identity of Sept. 11 detainees -- a matter now before the courts. At the very least, Congress should insist on a full understanding of what the department is doing before granting the executive branch still more authority.