At Monday's high-profile Senate hearing on domestic surveillance, positions on both sides were unchanged: The White House insisted its warrantless tapping is legal; Democrats and some key Republicans said it's not. But a door to potential compromise opened a crack. Both sides should push on it.
Several senators suggested that ways could be found to resolve the differences between the two branches of government. Speaking for the administration, Attorney General Alberto Gonzales replied that "we'd be happy to listen to your ideas."
What makes compromise possible is that both sides have the same aim.
Both the president and Congress want to catch Al Qaeda agents. No one wants another 9/11 failure to "connect the dots." As Democratic Sen. Dianne Feinstein of California confirmed, "we all agree" on the need to use "sophisticated electronic surveillance to learn about terrorist plans, intentions, and capabilities."
This common goal sets up Congress and the administration for a settlement out of court, so to speak. While Arlen Specter of Pennsylvania, the Republican chairman of the Senate Judiciary Committee who called the hearing, suggested the administration has the legality of its secret program reviewed by the secret federal court that grants wiretap warrants, that's not the best route here.
With a court confirmation or denial, one branch of government will lose this battle over power, and that's not what the nation needs in wartime. Rather, a country is strongest against the enemy when Congress and the White House support each other.
That's why both Bush presidents asked Congress for authorization of force prior to its use - even though many question the constitutionality of the 1973 War Powers Resolution that requires a president to consult Congress before committing US troops to hostilities. As Republican Senator Mike DeWine of Ohio astutely pointed out Monday, "Presidents are always stronger in the conduct of foreign affairs when Congress is on board."
If Congress believes it didn't give authority to the president to conduct warrentless wiretaps in its post-9/11 law to fight Al Qaeda, or that the president doesn't have inherent constitutional power on this issue, then it needs to act. Bringing Congress "on board" makes sense here, though in order to be acceptable to the administration, the question of who was right in this standoff would have to be put aside.
Allowing Congress a direct say would also provide the opportunity to address deficiencies in the 1978 Foreign Intelligence and Surveillance Act (FISA), one reason why the White House went around it.
Mr. Gonzales hinted at manpower, timeliness, and other problems with FISA that hindered the administration's ability to seek court warrants for eavesdropping on US residents communicating with Al Qaeda suspects overseas. There ought to be a practical way to allow surveillance that's also compatible during wartime with the Constitution's ban on unreasonable searches.
The White House earlier considered going to Congress to change FISA, but was concerned about leaks and didn't expect approval. These concerns are surmountable. The two branches should now work this out.