By Charles Babington
Washington Post Staff Writer
Tuesday, February 7, 2006
Despite President Bush's warnings that public challenges to his domestic surveillance program could help terrorists, congressional Republicans and conservative activists are split on the issue and are showing no signs of reconciling soon.
GOP lawmakers and political activists were nearly unanimous in backing Bush on his Supreme Court nominations and Iraq war policy, but they are divided on how to resolve the tension between two principles they hold dear: avoiding government intrusion into private lives, and combating terrorism. The rift became evident at yesterday's Senate Judiciary Committee hearing into the surveillance program, and it may reemerge at Thursday's intelligence committee hearing.
Bush and his allies have tried to squelch criticisms by suggesting that it is virtually unpatriotic to question the program's legality.
"Our enemy is listening," Attorney General Alberto R. Gonzales told the Judiciary Committee at the start of a day-long hearing into the National Security Agency's warrantless monitoring of Americans' phone calls and e-mails with foreign-based people suspected of terrorist ties. "And I cannot help but wonder if they aren't . . . smiling at the prospect that we might now disclose even more, or perhaps even unilaterally disarm ourselves of a key tool in the war on terror."
Several Republican committee members joined Democrats in pressing Gonzales to explain how the recently revealed surveillance program complies with the 1978 Foreign Intelligence Surveillance Act, which provides for secret warrants to monitor communications involving terrorism suspects.
"There are a lot of people who think you're wrong," the committee chairman, Arlen Specter (R-Pa.), told Gonzales. Specter asked why surveillance requests were not taken to the FISA court "as matter of public confidence."
Gonzales doggedly defended the NSA program, but Specter said in a late-afternoon interview that public uneasiness may force the administration to give ground.
"The whole history of America is a history of balance," Specter said, referring to security and civil liberties. "I think there's a chance the administration might take up the idea of putting this whole issue before the Foreign Intelligence Surveillance Court. . . . I think they are seeing concerns in a lot of directions from all segments: Democrats and Republicans in all shades of the political spectrum."
When Gonzales argues that the Constitution gives the president undisputable powers to conduct warrantless surveillance despite a statute aimed at requiring him to seek court approval, such an interpretation "is not sound," Specter said in the interview. ". . . He's smoking Dutch Cleanser."
Among those strongly backing Gonzales yesterday were Republican Sens. Orrin G. Hatch (Utah), John Cornyn (Tex.) and Jeff Sessions (Ala.). "We are not going hog wild restraining American liberties," Sessions told Gonzales. "In fact, the trend has been to provide more and more protections."
Some of the NSA program's sharpest critics have been libertarian groups, such as the Cato Institute.
"The overriding issue that's at stake in these hearings is the stance of the administration that they're going to decide in secrecy which laws they're going to follow and which laws they can bypass," said Timothy Lynch, director of Cato's project on criminal justice. Conservative Web sites and blogs appear to be "fairly evenly divided" on the NSA program, he said.
Sen. Lindsey O. Graham (R-S.C.) joined Specter in challenging Gonzales's assertion that Congress implicitly approved the surveillance tactics when it voted to authorize military force in combating terrorism shortly after the Sept. 11, 2001, attacks.
"This 'statutory force resolution' argument that you're making is very dangerous in terms of its application for the future," Graham told Gonzales. "When I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche."
Democrats making similar arguments have fallen under scathing attacks from some GOP lawmakers. Pat Roberts (R-Kan.), chairman of the Senate intelligence committee, put himself at odds with Specter last week after his panel questioned the director of national intelligence and the CIA director about the NSA program.
"I am concerned that some of my Democrat colleagues used this unique public forum to make clear that they believe the gravest threat we face is not Osama bin Laden and al Qaeda, but rather the president of the United States," Roberts said.
He also issued a lengthy letter defending the administration's arguments. With more congressional hearings on the NSA program scheduled this month, Republicans may have to scurry to keep such rebukes from targeting some of their own.