Maybe you remember that a federal judge in Detroit declared George W. Bush’s warrantless wiretapping program unconstitutional last month. Maybe you remember how Republican Sen. Arlen Specter said that the program was “inappropriate,” how Republican Sen. Chuck Hagel agreed that the president had “overstepped his bounds” in approving it or how Republican Sen. Lindsey Graham called some of the arguments offered in support of it “dangerous.” Maybe you remember how Bush himself said the other day that Americans “must put aside our differences and work together” on the question of terrorism.
Under intense pressure from the White House, the Senate Judiciary Committee today approved legislation sponsored by Specter that would give legal status to Bush’s warrantless wiretap program. The bill would allow — but not require –Bush to submit the program for review by the Foreign Intelligence Surveillance Court, a secret tribunal before which the government is the only party allowed to present evidence or argument. The bill also would allow the administration to seek “program warrants,” good for entire categories of wiretapping and monitoring activities, instead of the case-specific warrants that have been required (but, under Bush’s program, weren’t obtained) previously.
Democrats on the committee tried to amend the bill to put a time limit on the authority it granted and to otherwise constrain its scope. But the White House has insisted that the bill make it through the Senate without amendments, and Republicans — armed with political talking points provided by the National Security Agency — have been able to hold that line so far.
The committee also approved two other wiretap measures today. The first, sponsored by Graham and Ohio Sen. Mike DeWine, would allow the administration to engage in surveillance for 45 days — rather than three days, as set forth in the law currently — before seeking a warrant. Like Specter’s measure, that bill passed on a party-line, 10-8 vote. The second measure, sponsored by Specter and Sen. Dianne Feinstein, would provide the executive branch some additional wiretap authority but would also require more briefings on warrantless surveillance activities. It passed through the committee with the support of all of the Democrats and two Republicans, Specter and Graham.
How will the Senate reconcile three bills that offer three different approaches to the power the president should have? That’s the question — among others — that the ranking Democrat on the Intelligence Committee is asking today.
“This committee has two important functions, an oversight function and a legislative function,” Patrick Leahy says. “Having backed off of hearings because questioning administration witnesses would be ‘futile,’ to use the chairman’s term, we have effectively abdicated our oversight function. The majority now proposes that we abdicate our legislative function as well, by reporting out multiple bills with fundamentally differing approaches to issues that we lack sufficient information to address intelligently … Either FISA is mandatory or it is optional; either the president has inherent power to ignore whatever Congress legislates regarding domestic surveillance of Americans or he does not. This committee will have failed the American people if it votes out bills that have it both ways on these basic issues.”
Will have? It just did. The question now is whether the Senate and the House will “work together” to do the same.