[Mb-civic] Bucking Bush on Spying - David S. Broder - Washington Post Op-Ed

[William Swiggard]

Bucking Bush on Spying

By David S. Broder
Thursday, February 9, 2006; A23

No member of the Senate is more conservative than Sam Brownback of 
Kansas -- a loyal Republican, an ardent opponent of abortion and, not 
coincidentally, a presidential hopeful for 2008.

As a member of the Judiciary Committee, he has supported President Bush 
on every one of his court appointments. He is not one to find fault with 
the administration.

And that is why the misgivings he expressed Monday about the 
surveillance policies Bush has employed in the war on terrorism are so 
striking. Along with three other Republicans and all eight of the 
committee Democrats, Brownback emerged as part of a potential majority 
that could insist that Bush come back to Congress for authority to 
continue the wiretaps -- but under court supervision.

In questioning Attorney General Alberto Gonzales, Brownback said, "It 
strikes me that we're going to be in this war on terrorism possibly for 
decades . . . [and] to have another set of eyes also looking at this 
surveillance technique is an important thing in maintaining the public's 
support for this."

What Brownback put in gentle terms is exactly the issue that clearly 
troubled all but six of the 18 senators in the hearing -- the absence of 
any external checks on the secret wiretapping the president ordered 
after the Sept. 11, 2001, attacks.

Gonzales, in his testimony, made an effective rhetorical point by citing 
examples going back to Washington, Lincoln, Wilson and Franklin D. 
Roosevelt of presidents ordering interception of wartime communications 
-- on their own authority. But as several senators pointed out, those 
actions all came before the Supreme Court applied the Fourth Amendment 
ban on "unreasonable searches" to telephone calls and before Congress in 
1978 responded to the scandals of secret FBI wiretapping by enacting the 
Foreign Intelligence Surveillance Act (FISA), declaring such intercepts 
illegal except as approved by a specially constituted court.

Gonzales argued that the FISA process is too slow and cumbersome to cope 
with al Qaeda, but he was noncommittal or chilly to the many suggestions 
that the administration ask Congress for changes that would facilitate 
its use. When Brownback pointed out that after Sept. 11, Congress had 
extended the "grace period" for the government coming back to the FISA 
court for retroactive authorization of a wiretap from 24 hours to 72 
hours and asked Gonzales whether he would like an even longer time, he 
replied, "It's hard to say" whether that would help.

The obduracy of the administration in continuing to refuse such open 
invitations to seek a clear statutory authority for this electronic 
monitoring is almost impossible to understand -- unless Bush and Vice 
President Cheney are simply trying to establish the precedent that they 
can wage this war on terrorism without any recourse to Congress.

Every Democrat on the committee signaled in the hearing a readiness to 
make needed adjustments in the FISA statute, as Congress has done five 
times since 2001 to provide more flexibility. The Democrats clearly had 
heeded Karl Rove's recent speech to the Republican National Committee, 
signaling an intention to tag them -- once again -- in the 2006 campaign 
as being soft on terrorism.

They went out of their way to avoid that charge, with Ted Kennedy even 
applying some reverse English to the argument, by suggesting that al 
Qaeda suspects might beat the rap in court by their lawyers' 
successfully challenging evidence obtained through surveillance 
conducted under questionable legal authority.

And the authority Bush is using is, in the judgment of Republicans as 
well as Democrats, highly questionable. Lindsey Graham of South 
Carolina, a military lawyer before he came to Congress, said that when 
he voted to authorize the use of force against the perpetrators of the 
Sept. 11 attacks, "I never envisioned that I was giving to this 
president or any other president the ability to go around FISA carte 
blanche."

As for the administration's contention that Bush has "inherent power" as 
chief executive to order warrantless wiretaps, Graham said, "Its 
application, to me, seems to have no boundaries when it comes to 
executive decisions in a time of war. It deals the Congress out. It 
deals the courts out."

With two other Republicans, Chairman Arlen Specter of Pennsylvania and 
Mike DeWine of Ohio, and all the Democrats agreeing with Graham's view, 
the president has been given a clear signal to get off his high horse 
and come to Congress for statutory authority and court supervision of 
the surveillance program.

Yesterday, the White House offered further briefings but not 
legislation. If Bush won't do so, Congress needs to assert its 
responsibility by moving that legislation on its own.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/08/AR2006020801989.html
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