The Senate Judiciary Committee is about to bring congressional oversight for the first time to a super secret program that has sparked intense debate between the White House and members of both parties in Congress.
There will be a lot at stake when committee Chairman Arlen Specter opens Monday's hearing on the president's program of warrantless wiretaps on calls from suspected al Qaeda members. Arguments will be aired on both sides of this basic question: Are the president's actions legal, as Mr. Bush contends, or illegal as his critics contend? The hearings will also help determine who gains advantage in the political fight over a program that the president describes as an aggressive and appropriate measure to keep the country safe from terrorists. Democrats say it's an example of presidential overreaching.
When the program was first made public in a leaked report to The New York Times, it was described as "warrantless domestic eavesdropping." Since then, the White House has engaged in an aggressive effort to defend the program and to recast it in more politically advantageous language as a "terrorist surveillance" program.
The president has made several speeches on the subject. So have other top administration officials. The Justice Department has issued lengthy legal analyses supporting its contention that the program is legal. In all these presentations, the administration argues that the Constitution gives the president the authority to do what he sees fit to protect the country in his role as commander in chief.
Moreover, the administration says that even though the president doesn't need congressional approval, Congress did in fact approve the NSA program when it authorized Mr. Bush to use force against al Qaeda. Members of Congress dispute that argument. The non-partisan Congressional Research Service issued a report saying that the program violated the existing law on electronic eavesdropping, which requires the government to go to a secret court to get a warrant first -- or, if necessary, after the fact.
The White House clearly sees the debate over the NSA program as a political plus, another opportunity for the president to drive home the point that Republicans are more committed than Democrats to protecting Americans against terrorism -- no matter what it takes.
In his State of the Union address, President Bush stepped up his already vigorous defense of the program. He said that if it had been in place before Sept. 11 it might have caught some of the hijackers. But he did not explain how. In fact, the Sept. 11 commission has said that the government had plenty of information on two hijackers before the attacks, but bureaucratic hurdles, not a lack of surveillance tools, prevented their capture. The president also suggested that those who raise questions about the legality of the program have misguided priorities when it comes to protecting the country.
"If there are people inside our country who are talking with al Qaeda we want to know about it, because we will not sit back and wait to be hit again," he said.
Speaking at a National Republican Committee meeting in Washington, the president's chief political adviser, Karl Rove, signaled that the NSA wiretapping program would be at the heart of the GOP strategy in the upcoming midterm elections. "President Bush believes if al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," Rove said. "Some important Democrats clearly disagree."
In fact there are no important Democrats who disagree. Democrats in Congress, including such frequent critics of the administration as Senator John Kerry of Massachusetts, are adamant that they want the president to do everything he can, including wiretapping, to track and find terrorists. If the current law is too inflexible or outdated, they have invited the White House to come to Congress and ask for changes. And the ranking Democrat on the House Intelligence Committee, Jane Harman of California, has pointed out that the White House has asked Congress to amend the Foreign Intelligence Surveillance Act (FISA) several times since the Sept. 11 terrorist attacks. Each time Congress has agreed. Democrats have some Republican allies in this regard, including Specter, and fellow GOP Sens. John McCain of Arizona and Lindsay Graham of South Carolina.
But the president doesn't want to amend the current law to provide oversight to the NSA program. He said he worries that doing so would disclose details about how the surveillance works, something that would only "help the enemy."
Democrats say they suspect the real reason for his reluctance is that if the law were changed -- thereby ending the debate over the legality of the program -- the president would lose the political issue, as well as a potential precedent for expanding presidential powers in other areas.
For the most part, Democrats have been on the defensive in this debate. They insist that they are also tough on terrorists, and that they share the Republicans' commitment to national security. But Democrats are trying to frame the argument for its political overtones as well. "I think this is an issue of presidential overreaching," said Sen. Jack Reed of Rhode Island. "And the president's basically said, 'There's an area of activity that I alone can decide without revealing to anyone else what is right and what is wrong.' That places one individual above the law, and that's not what this Constitution's all about. "
Public opinion polls indicate that Americans are divided over this issue. That's precisely why there is such a heated battle over how to frame it. Some surveys show that majorities believe the president should get warrants for wiretaps, while others show that majorities are willing to give up some civil liberties in order to pursue the war on terror. The results change depending on how the question is worded. In one poll, a majority opposed the program when it was described as "warrantless wiretaps." But a majority supported the program when it was described as warrantless wiretaps to pursue terrorists.
The big political uncertainty is whether the NSA program will become a tool for Republicans in the next campaign, enabling them to paint Democrats as weak on terrorism -- much as they used Democrats' objections to one aspect of the Homeland Security legislation against them in 2002. Democrats say the president cannot work this jujitsu again because he has fallen too far in the polls since the elections of 2002. They note that no Democrat has opposed the legal wiretapping of suspected terrorists and that prominent Republicans have provided political cover by also questioning the legality of the NSA's warrantless eavesdropping. But Democrats remain nervous on the issue because they are still struggling to convince the public their party is strong enough on national security.
The Senate Judiciary Committee hearings could affect the course of that debate.
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