Looking back on the repressive acts of the Bush regime, historians will wonder why Congress went along.

They’ll also wonder why the judiciary didn’t.

Because in past eras of repression, like the roundup of dissidents during World War I or the internment of Japanese-Americans in World War II, the courts usually kissed the ring of the President.

Fortunately, that didn’t happen, by and large, this go round.

The Supreme Court ruled, four times, that detainees had due process rights.

And lower courts often stood up to Bush, as well.

The latest to do so was the U.S. Court of Appeals for the Second Circuit, which ruled on Monday that the FBI’s use of National Security Letters, as allowed by the Patriot Act, violated the First Amendment.

These letters are essentially subpoenas that the FBI draws up itself, seeking all kinds of information from individuals and businesses. And then it slaps a gag order on any recipient of those letters.

It was this gag order that the Court spit out. At least partially.

In a case brought by the ACLU, the court said that if the FBI wants to silence the recipients of National Security Letters, it must first go to a judge and demonstrate why such an infringement on speech should be allowed.

“The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements,” the court ruled. And it cited a 1990 Circuit Court decision (United Staves v. Smith) that said, “Under no circumstances should the Judiciary become the handmaiden of the Executive.”

By the way, the National Security Letter in question was imposed on an Internet Service Provider four years ago to reveal all the names of all those who communicated with a specific e-mail address. Though the government withdrew that National Security Letter more than 18 months ago, the name of that ISP is still secret and the owner of that ISP is still gagged.

In our so-called democracy.