Congress is partly to blame for Bush's warrantless wiretaps

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Congress is in an uproar over the Bush administration's use of warrantless wiretaps in the United States against American citizens. And well it might be. But to find the culprit, Congress has only to look in a mirror. The sad truth is that Congress does not want to exercise effective oversight of intelligence activities.

President Bush, for his part, says Congress implicitly authorized eavesdropping and other searches without a warrant when it authorized the president to respond to 9/11. The president has also asserted his inherent power under the Constitution to wiretap without congressional authorization, either implied or explicit. Attorney General Alberto Gonzales has admitted that the administration backed off seeking congressional authority because of advice from Capitol Hill that it would be too difficult to pass. So, if you don't think you can get it, say you don't need it.

Mr. Bush is not the first president to claim an inherent power in matters of national security. The last one before Bush was his immediate predecessor, Bill Clinton, who claimed it in connection with the sale of secrets by CIA employee Aldrich Ames. The issue is not political; it is institutional.

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There is a further institutional issue between the executive and legislative branches: conflicting views of what is involved in consultation between them. Traditionally, the executive branch has thought it has consulted Congress when in fact it has done no more than inform Congress. Congress, on the other hand, does not think it has been consulted unless there has been discussion as to what to do about a given problem.

The president and the attorney general have repeatedly made the point that Congress has been briefed on warrantless wiretapping a dozen times. The briefings consisted of assembling eight members of Congress out of 535: the chairmen and ranking minority members of the House and Senate intelligence committees, the speaker of the House, the House minority leader, and the majority and minority leaders of the Senate. This select group was brought to the White House, sworn to secrecy even with respect to their peers on Capitol Hill, and told - not asked - about what the administration was doing. We still don't know if they were told everything.

Some of them were troubled. So far as we know, only Sen. Jay Rockefeller (D) of West Virginia was troubled enough to do anything about it. What Senator Rockefeller did was to send a handwritten letter (if his secretary had typed it, she would have learned what he had sworn not to tell her) to Vice President Dick Cheney saying he was "concerned."

Given the circumstances, was there something else Rockefeller or others in the select group could have done? For one thing, they could have refused to accept the information on the strict terms under which it was offered. They could have gone to the president himself. If they were still dissatisfied, they could have demanded a secret session of the Senate and/or House and laid the problem before their colleagues. This has been done in the past, and such sessions have been remarkably leak-free.

The basic problem here is a fundamental disagreement over the constitutional powers of the president and Congress. Suppose Congress tells the president that it's OK to wiretap foreigners but not Americans without a warrant "particularly describing," as the Fourth Amendment puts it, "the place to be searched, and the persons or things to be seized." And suppose the president then does it anyway. This leaves the country in a major constitutional crisis.

It has happened twice before in the past 40 years. In the first instance, the Supreme Court struck down President Nixon's assertion of authority to withhold documents relating to Watergate, and Nixon resigned rather than face an impeachment trial in the Senate. In the second instance, which is more pertinent to the present case, Congress prohibited aid to the Nicaraguan contras and the Reagan White House supplied it anyway.

The secrecy with which the White House tried to hide the case unraveled, as such secrets almost always do. Congress investigated, and the program came to an end. Reagan should have been impeached, but wasn't; and some of his associates should have gone to jail, but didn't. President George H.W. Bush pardoned them on Christmas Eve 1992.

When the intelligence committees were established in the 1970s, they put in place elaborate security procedures but did not follow through in pressing tough questions. As a House staff member once put it, "There's a marked lack of curiosity around here." That's as good a description as any of what's wrong.

Pat M. Holt is former chief of staff of the Senate Foreign Relations Committee.

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