Bucking Bush on Spying

By David S. Broder
Thursday, February 9, 2006

No member of the Senate is more conservative than Sam Brownback of Kansas -- a loyal Republican, an ardent opponent of abortion and, not coincidentally, a presidential hopeful for 2008.

As a member of the Judiciary Committee, he has supported President Bush on every one of his court appointments. He is not one to find fault with the administration.

And that is why the misgivings he expressed Monday about the surveillance policies Bush has employed in the war on terrorism are so striking. Along with three other Republicans and all eight of the committee Democrats, Brownback emerged as part of a potential majority that could insist that Bush come back to Congress for authority to continue the wiretaps -- but under court supervision.

In questioning Attorney General Alberto Gonzales, Brownback said, "It strikes me that we're going to be in this war on terrorism possibly for decades . . . [and] to have another set of eyes also looking at this surveillance technique is an important thing in maintaining the public's support for this."

What Brownback put in gentle terms is exactly the issue that clearly troubled all but six of the 18 senators in the hearing -- the absence of any external checks on the secret wiretapping the president ordered after the Sept. 11, 2001, attacks.

Gonzales, in his testimony, made an effective rhetorical point by citing examples going back to Washington, Lincoln, Wilson and Franklin D. Roosevelt of presidents ordering interception of wartime communications -- on their own authority. But as several senators pointed out, those actions all came before the Supreme Court applied the Fourth Amendment ban on "unreasonable searches" to telephone calls and before Congress in 1978 responded to the scandals of secret FBI wiretapping by enacting the Foreign Intelligence Surveillance Act (FISA), declaring such intercepts illegal except as approved by a specially constituted court.

Gonzales argued that the FISA process is too slow and cumbersome to cope with al Qaeda, but he was noncommittal or chilly to the many suggestions that the administration ask Congress for changes that would facilitate its use. When Brownback pointed out that after Sept. 11, Congress had extended the "grace period" for the government coming back to the FISA court for retroactive authorization of a wiretap from 24 hours to 72 hours and asked Gonzales whether he would like an even longer time, he replied, "It's hard to say" whether that would help.

The obduracy of the administration in continuing to refuse such open invitations to seek a clear statutory authority for this electronic monitoring is almost impossible to understand -- unless Bush and Vice President Cheney are simply trying to establish the precedent that they can wage this war on terrorism without any recourse to Congress.

Every Democrat on the committee signaled in the hearing a readiness to make needed adjustments in the FISA statute, as Congress has done five times since 2001 to provide more flexibility. The Democrats clearly had heeded Karl Rove's recent speech to the Republican National Committee, signaling an intention to tag them -- once again -- in the 2006 campaign as being soft on terrorism.

They went out of their way to avoid that charge, with Ted Kennedy even applying some reverse English to the argument, by suggesting that al Qaeda suspects might beat the rap in court by their lawyers' successfully challenging evidence obtained through surveillance conducted under questionable legal authority.

And the authority Bush is using is, in the judgment of Republicans as well as Democrats, highly questionable. Lindsey Graham of South Carolina, a military lawyer before he came to Congress, said that when he voted to authorize the use of force against the perpetrators of the Sept. 11 attacks, "I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche."

As for the administration's contention that Bush has "inherent power" as chief executive to order warrantless wiretaps, Graham said, "Its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out. It deals the courts out."

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