DALLAS MORNING NEWS
(Dallas, TX)
Jan. 29, 2006, n.p.

Copyright © 2006 Dallas Morning News. Distributed by Knight-Ridder/Tribune Information Services. January 29, 2006. All rights reserved. Reprinted by permission.

A Race to Frame Spying Debate

By Michelle Mittelstadt
The Dallas Morning News (KRT)

     WASHINGTON--The Bush administration raced last week to defend its warrantless domestic spying program, with several aims in mind, experts say: win over a conflicted public; force Democrats into an arena that plays to GOP strength; and head off talk of impeachment and special prosecutors.

     With polls showing the public sharply divided over the controversial surveillance program, the White House and its critics--Democrats, small-government conservatives and civil libertarians--are engaged in a high-stakes contest to frame the debate.

     "If it's defined primarily as 'government abuse, the president out of control, the White House running roughshod over basic constitutional rights,' it would be a major problem for an extended period of time for the president--both on Capitol Hill but also with the voters," said political analyst Stuart Rothenberg.

     "If the issue is defined more as 'protecting national security, keeping people safe, stopping terrorism,' then what the Democrats immediately saw might be a good issue for them could actually be turned around for the president and the Republican Party."

     Though the court of public opinion is key, some suggest that the political system or the courts will be the ultimate arbiter of the program's legality--and the far weightier question of whether Bush is claiming executive powers outside the bounds of the Constitution or the law.

     "This is the dangerous side of what's going on," said David Keene, chairman of the American Conservative Union.

     He argues that the White House has gone too far in its assertion of presidential powers. "It sets the stage for a clash between institutions of government because what the executive claims when it claims the inherent power to do anything it wants in times of war, is saying that what Congress thinks doesn't matter and ultimately what the courts think doesn't matter."

     But Caroline Fredrickson, head of the American Civil Liberties Union's Washington office, said she fears that clash won't materialize because the GOP-led Congress has shown little appetite for oversight of the administration's anti-terrorism efforts.

     "Where you have bipartisan groups of individuals from the broadest spectrum of American political life suggesting that the president's actions are illegal, I think this is where Congress should be undertaking extensive hearings," she said.

     Thus far, the Senate Judiciary Committee is the only one committed to hold hearings, with Chairman Arlen Specter, R-Pa., voicing skepticism about the program's legal justification.

     Specter has summoned Attorney General Alberto Gonzales for a Feb. 6 hearing and is under pressure from Democrats to invite former Deputy Attorney General James Comey and other administration officials who reportedly raised concerns about the legality of the domestic surveillance.

     Gonzales and other top aides joined the president last week in a public relations blitz to assert that Bush had full authority to initiate warrantless surveillance of Americans believed to be engaged in communication with people overseas suspected of ties to al-Qaida or its affiliates.

     "We must be able to quickly detect when someone linked to al-Qaida is communicating with someone inside of America," Bush said Wednesday during a visit to NSA headquarters in Maryland.

     But critics say that can be done, with court review, under the 1978 Foreign Intelligence Surveillance Act. Though administration officials complain that the law is too cumbersome for "hot pursuit" surveillance, FISA backers note that the law permits emergency eavesdropping so long as court approval is sought within 72 hours.

     While the ACLU and the Center for Constitutional Rights have sued to challenge the spy program's constitutionality, some suggest that the controversy may not be settled in the courts.

     "It's very unlikely it will ever make it to the Supreme Court or a federal court because it basically is a disagreement between the executive branch and the legislative branch over who has power," said Sen. John Cornyn, R-Texas. "And the truth is, both branches have a responsibility and have authority."

     The groups' lawsuits were brought on behalf of Americans troubled by the thought of domestic spying without court oversight.

     But they will likely be deemed to lack legal standing because the groups weren't wiretap targets, said Kate Martin, head of the Center for National Security Studies. And while lawyers for defendants charged in terrorism cases have sued to learn if the warrantless wiretaps were used against their clients, Martin predicted that they are unlikely to pierce the veil of secrecy around the program.

     Her solution? Congressional hearings. And if lawmakers deem that Bush exceeded his power, Congress should censure him.

     Asked on a recent Sunday news show what he thought the remedy would be for a president breaking the law, Specter said: "Impeachment is the remedy."

     He quickly noted that he was speaking theoretically. And thus far, impeachment isn't being touted by the political establishment. Nor is the possibility of a special prosecutor, though a new USA Today/CNN/Gallup poll found that 58 percent of Americans favor appointment of a special prosecutor.

     But Bruce Fein, who served in the Nixon Justice Department, noted that it took many months for impeachment to gain currency during Watergate.

     "I think that it would be premature to write off the impeachment option," Fein said.

     Impeachment is not likely to gain political traction, said Larry Sabato, a University of Virginia political scientist. "Only hard-core Democratic partisans want to see Bush impeached, so it just turns people off."

     Congressional Democrats, who have been burned at the polls after jousting with Bush over national security issues, are far less likely to raise impeachment, Rothenberg agreed. A better option for them, he said, is to push the question of whether Bush broke the law or abused his power.

     Keene, typically a staunch Bush ally, predicted that the administration's stance would "create an institutional backlash," with Congress moving to assert its power.

     The best outcome, Fein said, would be for the White House to seek a rewrite of the FISA law if changes are deemed necessary--and to quietly renounce the idea that the Constitution grants the president unparalleled wartime power.

     Few of those challenging the administration's actions have suggested that the spy program should be terminated, and congressional Democrats have urged the administration to come to Congress for legislative approval.

     The White House sees no need to do so, spokesman Scott McClellan said. "The president has the authority and responsibility to do what he's doing to prevent attacks from happening," he said.

     Keene and others predicted that resolution may be years away.

     "I'm not sure how it plays out, but ultimately it plays out by getting some kind of balance," he said. After all, he noted, executive excesses in the past--such as President Truman's seizure of U.S. steel mills during the Korean War--ultimately were corrected.

A Look at the Issues in Bush's Domestic Spying Program

     WASHINGTON--The following are issues raised by the Bush administration and its critics over a secret domestic surveillance program that President Bush directed the National Security Agency to launch shortly after the Sept. 11, 2001, terrorist attacks.

Constitutionality

     Bush administration: The Constitution gives the president, as commander in chief, "all necessary authority" to protect the nation from armed attack.

     Critics: By enacting the Foreign Intelligence Surveillance Act in 1978, Congress made it illegal to spy on anyone in the United States without court approval and expressly rejected any presidential claim of inherent authority to conduct warrantless wiretaps. The critics also contend that the president's assertion of unfettered powers during a war likely to continue for decades sets the stage for an imperial presidency, shattering the Founding Fathers' vision of co-equal executive, legislative and judicial branches of government.

Legal Authority

     Bush administration: When Congress approved a resolution in September 2001 authorizing the use of military force, lawmakers permitted the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the Sept. 11 attacks to prevent future attacks.

     Critics: Congress specifically rebuffed a request by the administration to include domestic surveillance in the war resolution, which is proof that lawmakers were not providing the president a blank check to initiate new programs. The nonpartisan Congressional Research Service concluded it "appears unlikely" a court would side with the administration's interpretation of explicit or implied approval by Congress.

Congressional Notice

     Bush administration: The eight top House and Senate Republicans and Democrats in leadership and on intelligence committees were briefed on the program more than a dozen times. "If I wanted to break the law, why was I briefing Congress?" Bush said.

     Critics: The administration violated the 1947 National Security Act by not briefing all members of the House and Senate intelligence committees, a view endorsed by the Congressional Research Service.

Effectiveness

     Bush administration: The surveillance has "given us information that we would not otherwise have been able to get," said Gen. Michael Hayden, the former National Security Agency director who implemented the program. He said that had the program been in place pre-Sept. 11, at least two of the hijackers would have been detected.

     Critics: The effectiveness cannot be rated because details of the secret program and its scope have not been revealed. They note that the Sept. 11 commission found that U.S. intelligence, operating without the program, intercepted multiple communications indicating a "possible imminent" attack during the summer of 2001 but in some instances failed to share the information with others, including the FBI. The NSA, the CIA and the FBI had significant information about the two hijackers mentioned by Hayden but didn't fully exploit the information to track them down in the United States before the attacks.