Tactics of war on terror to occupy Congress
Lawmakers will move this week on how to proceed with warrantless surveillance and treatment of detainees.
After months of inaction, Congress is poised this week to move on two tough issues in the war on terror: warrantless surveillance of Americans and the treatment of detainees.Skip to next paragraph
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How these matters are resolved could rein in the power of a wartime president, reversing half a century of retreat on the part of Congress – or not.
Both cut across party lines and between House and Senate. But, for now, the most immediate battle is how open the resolution of these issues will be to the public.
More than seven months after the leak of a top-secret warrantless surveillance program, the House and Senate are both pressing to get the program right with the law.
A Senate plan – personally negotiated with Vice President Cheney and President Bush by Judiciary Committee chairman Arlen Specter (R) of Pennsylvania – would let a secret court rule on the program's constitutionality. Under the plan, the public would not learn more about the scope of the current surveillance or the court's reasons for supporting or revising it.
A House version – introduced last week by Rep. Heather Wilson (R) of New Mexico and supported by the chairman of the Judiciary and Intelligence committees – would rewrite the rules for domestic surveillance in public.
At issue is whether the president can disregard a law of Congress on the grounds that it conflicts with the president's "inherent powers" under Article II of the Constitution. When Congress passed the Foreign Intelligence Surveillance Act in 1978, it set up FISA court as the exclusive means to obtain a warrant for secret surveillance. After the 9/11 attacks, Mr. Bush authorized the National Security Agency to intercept domestic calls and e-mails without a warrant if they involved contacts with suspected terrorists abroad.
Senator Specter says his plan deliberately does not mandate the president to submit the program to court, "because the president did not want to institutionally bind presidents in the future." Nor, he says, is there any requirement that the secret FISA court release its opinion to the public.
In contrast, House sponsors say they did not pre-cook a deal with the White House. "This is not a negotiated solution," says Representative Wilson. A veteran and graduate of the Air Force Academy, she chairs the Intelligence Policy subcommittee of the Permanent Select Committee on Intelligence. Her plan simplifies the approval process for a warrant and requires that more information be provided to the secret court overseeing the program and the full House and Senate intelligence committees.
"It's very clear that the [House] is not just accepting the executive branch's interpretation. We're pushing back," she says. "The best way to prevent the excesses of the intelligence system is to write into legislation checks and balances."
At a time when most members of Congress still have not been briefed on details of the top-secret program, she says that the "requirement to inform" is the most important element in her proposed revision. "It has a chilling effect on excesses."