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Senate: How much leeway for Bush?

A big question is whether to rein in or approve his war-on-terror policies.

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In effect, the White House is saying: "We're not going to tell you what we're doing, but go write a law," says Sen. Jack Reed (D) of Rhode Island, a point man for Senate Democrats on the war on terror. For Congress to give the White House appropriate legal authority for such surveillance activities, it must be more fully briefed, he says.

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Republicans who have been strong supporters of the Bush White House in the war on terror are also restive. In a private letter to the president, disclosed on Sunday, Rep. Peter Hoekstra (R) of Michigan, chairman of the House Permanent Select Committee on Intelligence, criticized the administration for not "fully and currently" briefing the panel on all its intelligence programs. He says he has learned of alleged intelligence community activities his committee has not been briefed on.

"It is not optional for this president or any president or people in the executive community not to keep the intelligence committees fully informed of what they are doing," he said in an interview on "Fox News" on Sunday.

In Hamdan v. Rumsfeld, the Supreme Court ruled 5 to 3 that Mr. Bush's plan for military tribunals to try detainees in the war on terror did not comply with the Uniform Code of Military Justice. The court faulted the administration for failing to get congressional approval.

Now, lawmakers are reopening a debate on what constitutes a fair trial for prisoners in a global war on terror: Should detainees have a right to counsel to contest their detention or to see classified information important to their defense? Should a statement from a detainee be used if it was coerced? Can hearsay evidence be used in a trial?

Any new plan for the treatment of detainees should start with the Uniform Code of Military Justice, passed by Congress, Senator Graham and many Democrats say. If some rules, such as those barring the use of hearsay evidence, are inappropriate for prosecuting detainees, Congress could change them, they say.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary panel, calls the White House's refusal to work with Congress in November and December of 2001 "a mistake of historic and constitutional proportions." Now, there's a new chance to develop bipartisan legislation creating military commissions that comply with the law, he says.

"We need to see a realization by this administration that it's Congress that writes our laws, and that no officeholder, branch, or agency of our government is above the law," he said Tuesday.

But it's not clear that other Republicans, including the chairmen of the House and Senate Armed Services Committees, will back a plan that forces the Bush administration to give detainees more rights – or to alter administration policy in any significant way.

"The American people will not look favorably on this Congress if it gives Al Qaeda terrorists more generous protections and procedures than criminal defendants in US courts and our own military personnel," says Sen. John Cornyn (R) of Texas, a member of the Senate Judiciary Committee.