Despite the usual Democratic jeering and sniping from the sidelines, the battle over warrantless eavesdropping taking place in the Senate Judiciary Committee is between two branches of government, the presidency and Congress, both controlled by Republicans.

When challenged, the Bush administration’s reflexive response is: We know best, and none of your business. Dressed up in legalese, that was basically Attorney General Alberto Gonzales’ response to why the administration conducts warrantless wiretapping of U.S. residents’ communications overseas when the law and the Constitution seem to say it cannot.

This time a skeptical bloc of committee Republicans — the chairman, Arlen Specter, Pa.; Lindsey Graham, S.C.; Mike DeWine, Ohio; and Sam Brownback, Kan. — wasn’t buying it, and a good thing, too.

Gonzales revealed that the administration had considered a much broader eavesdropping program, encompassing purely domestic communications, but decided against it, not because it was probably illegal, but because it feared adverse public reaction. That suggests that, despite White House charges of harm to national security when the much-narrower eavesdropping program was disclosed in December, the administration knew the program would eventually become public.

Gonzales asserted that the president has the inherent power under the Constitution and implicit power under the 2001 congressional resolution authorizing the use of force against al Qaeda to ignore the law. This was the justification, the attorney general told the committee, for the administration’s decision to circumvent the Foreign Intelligence Surveillance Act and the court it established to approve national security wiretaps.

Gonzales dismissed FISA as too burdensome and a “peacetime” law, anyway. But Graham said, “When I voted for (the resolution), I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.”

Specter said the administration’s reading of the law “just defies logic and plain English.” He was even sterner later when he said of Gonzales to a Washington Post reporter, “He’s smoking Dutch cleanser.”

Members of Congress have proposed a number of ways to resolve the questions arising out of the president’s assertion of inherent and implicit broad emergency powers. Let the FISA court decide whether warrants are required. Amend FISA to expand and streamline it. Or revisit the 2001 “all necessary and appropriate use of force” resolution to specify the limits of presidential power.

The legal argument that the president can ignore the law _ and, by extension, Congress _ is a perilous precedent. Graham called it “very dangerous in its applications for the future.”


(Contact Dale McFeatters at McFeattersD(at)