After weeks
of furious controversy, Congress seems to be moving toward a sensible
consensus on President Bush's secret National Security Agency
surveillance program: Make it legal. Now, Bush should take "Yes"
for an answer.
So far, the
administration seems stuck on using the president's "inherent"
constitutional authority to tap suspected terrorists, but Bush
would be on stronger ground if he agreed with Congress on a plan
to establish its legality.
Some Democrats
still want to investigate Bush for what they see as his breaking
the law with the program. But most now seem to accept that it's
a valuable anti-terrorism tool that ought to be continued.
That, more
or less, was the view expressed by Democratic Sens. Edward Kennedy
(Mass.), Dick Durbin (Ill.), Herb Kohl (Wis.) and Joseph Biden
(Del.) when Attorney General Alberto Gonzales testified last week
before the Senate Judiciary Committee.
And, it certainly
is the view expressed by Rep. Jane Harman (Calif.), ranking member
on the House Intelligence Committee in various interviews, including
one with me, and by former Senate Minority Leader Tom Daschle
(D-S.D.) on "Meet the Press" last Sunday.
That stance
is a reversal for Daschle. On Dec. 23, he wrote in an op-ed in
The Washington Post that Bush never asked for no-warrant
wiretap authority in the aftermath of the Sept. 11, 2001, terrorist
attacks, and that "I did not and never would have supported
giving authority to the president for such wiretaps."
Yet, on "Meet
the Press," Daschle said "we all support going after
the terrorists. We support the program." And when asked whether
it should be stopped, he replied, "No, absolutely not. I
think it's a very valuable program" that should be placed
"under the rule of law."
To her credit,
Harman has supported the program from the beginning - no surprise,
given her stalwart stands on national security, even in the face
of criticism from left-wing Democrats.
Since The
New York Times' disclosure of the program - "a leak
I deplore," she told host Tim Russert - "I still support
the program, but it needs to be on a sounder legal footing."
How to make
the program legal is complicated by the fact that it's not clear
how it actually works - and everyone who values it has no desire,
understandably, to reveal operational details to terrorists. It's
also understandable why the administration did not seek authority
for it before the Times leak. It did not want al Qaeda
to know that those sorts of communications were being tapped.
Now that
the program's existence is known, though, the question of whether
to pass a law is boiling down to a tussle between the executive
branch and Congress. Republicans, including Sens. Arlen Specter
(Pa.) and Lindsey Graham (S.C.), are insisting that Bush acted
without legal authority.
The administration
can cite a long list of Supreme Court and lower-court cases that
bolster its argument that the Constitution gives the president
"plenary" authority over foreign intelligence policy.
Bush presumably does not want to compromise his powers by submitting
to Congress.
But a Congressional
authorization is not necessarily an impairment of presidential
power. Bush could easily accept it as a ratification - even an
enhancement - of his powers.
And, at a
time of nasty and polarizing election-year politics, this is an
opportunity for Bush and Congress, and Republicans and Democrats,
to demonstrate that they can agree at least upon measures to protect
the country from the threat of terrorism.
Polls suggest
that the public is confused about whether the program is legal
and whether Bush has violated the law. The latest Gallup poll
identifies the program not as "domestic spying" but
as the tapping of conversations "between U.S. citizens living
in the United States and suspected terrorists living in other
countries."
Even so,
49 percent of respondents said that Bush "definitely"
or "probably" broke the law in ordering it, while 47
percent said he did not.
Still, when
The Los Angeles Times asked about whether Congress should
reauthorize the USA PATRIOT Act, giving the government "greater
powers to access records, perform wiretaps and use other means
to locate terrorists," the public answered yes by a margin
of 59 percent to 33 percent.
At the moment,
there appears to be a wide range of opinion on how to authorize
the program. Specter has been talking about submitting it the
Foreign Intelligence Surveillance Court for a determination of
whether it is constitutional and for general oversight.
Various critics
have questioned whether any federal court will issue an advisory
opinion in the absence of a specific case to adjudicate, and they
say that Specter apparently wants to delegate a legislative oversight
function to the judiciary.
Sen. Mike
DeWine (R-Ohio), who sits on both the Intelligence Committee and
the Judiciary Committee, is circulating legislation that would
specifically exempt the program from the Foreign Intelligence
Surveillance Act that governs other electronic intercepts and
would require the administration to regularly brief special House
and Senate intelligence subcommittees about it.
In The
Wall Street Journal on Wednesday, federal appeals court Judge
Richard Posner suggested that FISA be amended to lower the standard
for intercepts from "probable cause" to "reasonable
suspicion" that terrorist communication is involved.
Conceivably,
Congress could pass a simple statute giving the president "all
necessary authority to intercept international communications
between persons reasonably believed to be engaged in terrorist
planning."
Harman told
me she does not believe this would pass muster under the Fourth
Amendment, which requires a warrant based on "probable cause,"
but she said she believes that the Bush program is already legal
under FISA and may simply require administrative speed-ups such
as electronic filing.
Gonzales
indicated to the Senate Judiciary Committee that he'd listen to
suggestions from Congress on legal changes. He ought to sit down
with Congressional leaders and help write them.
Mort
Kondracke is the Executive Editor of Roll Call.
