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.
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."
Last week, Attorney General Alberto Gonzales told the Senate Judiciary Committee that Bush had personally blocked the Justice Department's internal investigation into the NSA surveillance program.
Meanwhile, civil liberties groups urge more congressional oversight and a resolution to the dispute that the public can see and understand.
"The legislation labeled by Senator Specter as a compromise is a complete cave-in to the Bush administration," said former GOP Rep. Bob Barr of Georgia, who now chairs the group Patriots to Restore Checks and Balances.
Constitutional experts say such issues in the past have been resolved openly. "There's no way to have an adversarial process when one side has all the information and won't release it," says Louis Fisher, an expert on balance of power issues at the Library of Congress. "How do we decide constitutionality? You have to persuade people.... Democracy dies behind closed doors."
Some Senate Democrats say they are not supporting the Specter proposal.
The Specter bill "gives trappings of independent oversight, but really no checks on executive power. I will oppose it," says Sen. Ron Wyden (D) of Oregon, who, as a Senate Intelligence panel member, has been briefed on the NSA surveillance program.
Sen. Dianne Feinstein (D) of California is also prepared to vote against the Specter plan. "It sets a precedent for all time. We're in a situation that could go on for decades. To have Americans' communications tapped without a warrant is not something I could agree to," she says.
Congress is being pressed to act on warrantless surveillance and the treatment of detainees by the progress of lawsuits through US courts. On Thursday, US District Judge Vaughn Walker declined to dismiss a lawsuit contesting the NSA surveillance program on the grounds that dismissing the case "would sacrifice liberty for no apparent enhancement of security."
At the same time, the Senate Armed Services Committee is taking the lead to negotiate a deal with the White House over the treatment of detainees, following the US Supreme Court ruling in Hamdan v. Rumsfeld that requires the executive "to comply with the rule of law that prevails in this jurisdiction."
For some GOP senators, that means rewriting law to fit the current practices of the Bush administration in the treatment of detainees. But there is strong support on both sides of the aisle for Congress to take a more assertive role.
"There is a collaborative process going on that is going to lead to a good result," said Sen. Lindsey Graham (R) of South Carolina, who is calling for a military commission model that starts with the Uniform Code of Military Justice.
"Provisions should not be interpreted to limit our ability to get actionable intelligence by humane but sometimes aggressive methods," counters Sen. John Cornyn (R) of Texas. "We must protect our own people from lawsuits on the basis of something ambiguous and vague."