A race to frame spying debate

Some suggest that the political system or the courts will be the ultimate arbiter of the program's legality.
DALLAS MORNING NEWS
WASHINGTON -- The Bush administration raced last week to defend its warrantless domestic spying program, with several aims in mind, experts say: win over a conflicted public; force Democrats into an arena that plays to GOP strength; and head off talk of impeachment and special prosecutors.
With polls showing the public sharply divided over the controversial surveillance program, the White House and its critics -- Democrats, small-government conservatives and civil libertarians -- are engaged in a high-stakes contest to frame the debate.
"If it's defined primarily as 'government abuse, the president out of control, the White House running roughshod over basic constitutional rights,' it would be a major problem for an extended period of time for the president -- both on Capitol Hill but also with the voters," said political analyst Stuart Rothenberg.
"If the issue is defined more as 'protecting national security, keeping people safe, stopping terrorism,' then what the Democrats immediately saw might be a good issue for them could actually be turned around for the president and the Republican Party."
Though the court of public opinion is key, some suggest that the political system or the courts will be the ultimate arbiter of the program's legality -- and the far weightier question of whether Bush is claiming executive powers outside the bounds of the Constitution or the law.
"This is the dangerous side of what's going on," said David Keene, chairman of the American Conservative Union.
Argument
He argues that the White House has gone too far in its assertion of presidential powers. "It sets the stage for a clash between institutions of government because what the executive claims when it claims the inherent power to do anything it wants in times of war, is saying that what Congress thinks doesn't matter and ultimately what the courts think doesn't matter."
But Caroline Fredrickson, head of the American Civil Liberties Union's Washington office, said she fears that clash won't materialize because the GOP-led Congress has shown little appetite for oversight of the administration's anti-terrorism efforts.
"Where you have bipartisan groups of individuals from the broadest spectrum of American political life suggesting that the president's actions are illegal, I think this is where Congress should be undertaking extensive hearings," she said.
Thus far, the Senate Judiciary Committee is the only one committed to hold hearings, with Chairman Arlen Specter, R-Pa., voicing skepticism about the program's legal justification.
Specter has summoned Attorney General Alberto Gonzales for a Feb. 6 hearing and is under pressure from Democrats to invite former Deputy Attorney General James Comey and other administration officials who reportedly raised concerns about the legality of the domestic surveillance.
Gonzales and other top aides joined the president last week in a public relations blitz to assert that Bush had full authority to initiate warrantless surveillance of Americans believed to be engaged in communication with people overseas suspected of ties to Al-Qaida or its affiliates.
"We must be able to quickly detect when someone linked to Al-Qaida is communicating with someone inside of America," Bush said Wednesday during a visit to NSA headquarters in Maryland.
But critics say that can be done, with court review, under the 1978 Foreign Intelligence Surveillance Act. Though administration officials complain that the law is too cumbersome for "hot pursuit" surveillance, FISA backers note that the law permits emergency eavesdropping so long as court approval is sought within 72 hours.
For the courts?
While the ACLU and the Center for Constitutional Rights have sued to challenge the spy program's constitutionality, some suggest that the controversy may not be settled in the courts.
"It's very unlikely it will ever make it to the Supreme Court or a federal court because it basically is a disagreement between the executive branch and the legislative branch over who has power," said Sen. John Cornyn, R-Texas. "And the truth is, both branches have a responsibility and have authority."
The groups' lawsuits were brought on behalf of Americans troubled by the thought of domestic spying without court oversight.
But they will likely be deemed to lack legal standing because the groups weren't wiretap targets, said Kate Martin, head of the Center for National Security Studies. And while lawyers for defendants charged in terrorism cases have sued to learn if the warrantless wiretaps were used against their clients, Martin predicted that they are unlikely to pierce the veil of secrecy around the program.
Her solution? Congressional hearings. And if lawmakers deem that Bush exceeded his power, Congress should censure him.
Asked on a recent Sunday news show what he thought the remedy would be for a president breaking the law, Specter said: "Impeachment is the remedy."
He quickly noted that he was speaking theoretically. And thus far, impeachment isn't being touted by the political establishment. Nor is the possibility of a special prosecutor, though a new USA Today/CNN/Gallup poll found that 58 percent of Americans favor appointment of a special prosecutor.