Bush's Bad Connection

The attorney general of the United States was playing rope-a-dope. Why, the senators wanted to know, did the White House circumvent a law passed by Congress, the 1978 Foreign Intelligence Surveillance Act, which requires intelligence services to obtain search warrants before intercepting international communications inside the United States? Alberto Gonzales was evasive and bland. Speaking in legalisms, he offered few details about the National Security Agency's sweeping post-9/11 eavesdropping program. After a series of senatorial questions had gone essentially unanswered, Sen. Patrick Leahy of Vermont interjected, "Of course, I'm sorry, Mr. Attorney General, I forgot: you can't answer any questions that might be relevant to this."

Such sarcasm might be expected of a Democrat like Leahy. But Gonzales also came under tough questioning from four of the 10 Republican senators on the Judiciary Committee, including its chairman, Arlen Specter of Pennsylvania. At the hearing, Gonzales argued, as President George W. Bush has several times before, that Congress gave the executive branch the power to wiretap when it passed a resolution, right after 9/11, authorizing the "use of force" to battle terrorism. Sen. Lindsey Graham of South Carolina, a conservative Republican, called that argument "very dangerous in terms of its application to the future. When I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche."

It is not yet clear how the public feels about warrantless wiretapping. As usual, the answer depends on the question. Asked if they approve of government eavesdropping on U.S. citizens, most people say no; asked if they approve of eavesdropping to catch terrorists, most people say yes. More-sophisticated polls show a roughly even split in opinion, so it's hard to know how the issue will cut in the 2006 elections. But there is no question that the solons of Capitol Hill--and, increasingly, those in the Republican Party--are growing restless and ready to challenge the authority of the Bush White House.

In part, congressional egos and prerogatives are on the line. Members of both parties feel bullied by the sometimes high-handed treatment they get from the Bush administration, particularly from Vice President Dick Cheney, the outspoken avatar of executive power. Congress has always been the place to go to complain about executive-branch bungling and malfeasance. Last week was particularly rough for the Bush team on Capitol Hill: former FEMA director Michael Brown used a congressional hearing to lay the blame for the botched handling of Hurricane Katrina on the White House and the Homeland Security Department--both of which, Brown argued, had been promptly informed of the storm's terrible toll, an assertion that may shift more of the blame for the disaster-within-a-disaster away from the seemingly hapless "Brownie," as President Bush called his ousted FEMA director.

This coming week is not going to be any better. The Senate intelligence committee is likely to vote to open an investigation into the NSA's wiretapping program, according to senior congressional aides who declined to be identified discussing sensitive matters. The chairman of the committee, Sen. Pat Roberts of Kansas, will probably follow the White House line and try to keep a lid on the hearings. But three Republicans--Chuck Hagel of Nebraska, Olympia Snowe of Maine and Mike DeWine of Ohio--are expected to join with the Democrats on the committee to vote to demand more information about the secret eavesdropping program from the White House and intelligence agencies.

The White House is likely to be defiant. Cheney's chief aide and counsel, David Addington, has advised his bosses that even if the intelligence committee votes to subpoena secret documents from the executive branch, the demand will not be upheld by the courts. Cheney's attitude seems to be: bring it on. Last week the veep told cheering activists at the annual Conservative Political Action Conference that the White House intends to trumpet NSA wiretapping as a winning issue in the fall campaign. "With an important election coming up," said Che-ney, "people need to know just how we view the most critical questions of national security and how we propose to defend the nation."

A senior White House official shrugged off the push-back from Republican lawmakers against warrantless eavesdropping. "The idea that there is growing concern in our party is unfounded," he said. This aide, who knows the thinking of the president and his top advisers but refuses to be identified talking about it, attributed individual motivations to the GOP dissidents. He said that some lawmakers, like Senator DeWine, are in close races back home and need political cover, while others, like Senator Hagel, are well-known mavericks who often criticize the White House. (Hagel is widely viewed as weighing his own 2008 presidential bid.)

Even so, the White House was not wholly ignoring the noise on Capitol Hill. Rep. Heather Wilson, who chairs a subcommittee on House intelligence, caused a stir when she raised doubts about the NSA program. Wilson is in a tight re-election race, but, as an Air Force Academy grad and former National Security Council staffer, she is respected as a policy maven. Last week the White House agreed to brief the full House and Senate intelligence committees on the NSA programs.

The sessions were apparently not very --revealing. Even congressional lead-ers who had been briefed all along on the NSA program have complained to NEWSWEEK that they were largely kept in the dark about the real workings of the program. There has been some talk about getting a new law specifically to authorize the NSA's warrantless eavesdropping. Gonzales told the Senate Judiciary Committee that a "bipartisan group of leaders" was consulted in 2004 about whether a new law was needed--and the "consensus" was that legislation couldn't be written without exposing secret taps. But contacted by NEWSWEEK, Rep. Peter Hoekstra said the issue never came up when he was briefed by Vice Presi-dent Cheney after he became GOP chair of the House Intelligence Committee in August 2004. Three Democratic leaders briefed on the program that year--Rep. Jane Harman, Sen. Jay Rockefeller and former Senate minority leader Tom Daschle--recalled no discussion of a new law. "I'm confident it never occurred," said Daschle. On the other hand, Roberts did recall discussing new legislation. No transcript was made and members were not allowed to take notes or consult with aides afterward, making it all but impossible to establish exactly what was said.

In an effort to shore up GOP ranks, Bush paid a personal visit to a House Republican leadership retreat on Maryland's Eastern Shore last week. He tried to explain to the group why he didn't brief more members on the NSA effort. "I didn't want the enemy to know the game plan," said Bush, mentioning the Hill's tendency to leak. "I'd make the same decision again, but I understand your concerns." Bush gave the crowd a pep talk: "Laura told me I should never say this again, but I want the terrorists hunted down, dead or alive." Strong applause greeted him. Even Representative Wilson thanked Bush for his decision to brief the full intelligence committees. "We all want to capture the terrorists," she said.

It is hard to know if the ad-ministration is hiding more controversial weapons in the war on terror. Asked at the Senate Judiciary hearing if the president had ordered the opening of private mail, Gonzales refused to answer such "hypotheticals." There are hints that federal law enforcement has pushed the edge of the legal envelope. In recent court papers, Iyman Faris, a former Columbus, Ohio, truckdriver who pleaded guilty to a plot to bring down the Brooklyn Bridge with a blowtorch, argued that he had been held without a warrant. Seeking to overturn his guilty plea, Faris has claimed that the FBI agents who took him into custody in March 2003 told him he didn't need a lawyer because he had "joined the U.S. team." After questioning him for several days at a Columbus-area hotel, Faris says, the FBI took him to its training academy at Quantico, Va., where he was held in a locked dormitory room and interrogated for eight hours a day. According to Faris's account, this treatment continued for a couple of weeks, during which he was never formally arrested or given a "Miranda" warning (though he was allowed to use his cell phone and meet once with his girlfriend).

Faris is perhaps not the most sympathetic test case for civil liberties. He once met Osama bin Laden at a terrorist training camp and, according to the U.S. government, he was a member of a U.S.-based cell set up by Al Qaeda's operations director at the time, Khalid Shaikh Mohammed. (The FBI and Justice Department refused to comment, but officials privately noted that Faris has changed his story several times.) But if it emerges that the United States has been secretly spying on more seemingly innocent Americans, then the Bush administration really will have a problem, and it won't just be among ruffled lawmakers on Capitol Hill.