Congress slow to set rules for terror fight

Lawmakers debate guidelines for administration


WASHINGTON -- This was supposed to be the year for Congress to write laws to govern the war on terror. But as the summer recess got under way yesterday, there were few signs that the Republican-controlled House and Senate were close to setting ground rules.

Right after Sept. 11, the Bush administration had broad support for taking whatever steps it deemed necessary to protect against future attacks. But nearly five years and several key court rulings later, the job of setting formal guidelines has landed on Capitol Hill.

The stage was set eight months ago, when President Bush -- in response to news reports -- confirmed he had secretly authorized the National Security Agency to intercept phone calls and e-mails coming into this country, despite a federal law that requires a warrant from a judge. Since then, Congress has been debating what to do.

It could require the NSA to obtain warrants for these intercepts, a move some lawmakers favor. Or it could exempt Bush's program from oversight on grounds of national security, the course favored by the administration.

Then in June, the Supreme Court struck down the president's special military tribunals for alleged terrorists, ruling that Congress must adopt laws to govern such prosecutions. While some lawmakers favor the use of the military's traditional rules for courts-martial, Bush's lawyers would prefer that Congress simply write the president's tribunal rules into law.

House and Senate committees are moving slowly on both fronts and have not approved any legislation. "Clearly, Congress has not stepped up," Sen. Mike DeWine, an Ohio Republican, said during a Senate Judiciary Committee hearing Thursday. "Congress needs to act."

Civil libertarians and military lawyers who favor tighter oversight of the administration's conduct of the war say they are not optimistic. They believe that, in the fall of an election year, lawmakers are not likely to put new checks on the White House. "I testified before both the House and Senate Armed Services Committees, and I came away really discouraged, particularly on the House side," said John D. Hutson, former chief Judge Advocate General of the Navy who is dean of the Franklin Pierce Law School in Concord, N.H. "Many of the members simply want to rubber-stamp the administration's prior commissions."

Despite having spent a good deal of time debating the issue of electronic surveillance, lawmakers remain sharply divided on what to do.

Earlier this year, Republican Sen. Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee, accused Bush and the NSA of breaking the law by authorizing wiretaps of phone calls within the United States without a warrant.

To prevent unchecked snooping on private phone calls, the Foreign Intelligence Surveillance Act of 1978 said the government must obtain a judge's warrant for wiretaps. Officials must show they have good reason to believe that their target is linked to a foreign government or international terrorist group. Under FISA, that is the "exclusive" legal means for conducting such electronic surveillance.

But administration officials argue that the warrant requirement is a hindrance to quickly detecting terrorist plots.

Hoping to bridge the divide, Specter met recently with Bush and Vice President Dick Cheney and agreed to press for legislation that would remove the "exclusive" language from the surveillance law. This would permit the government to bypass the warrant requirement.

Specter hailed his bill as a great compromise. Critics condemned it as a sell-out. But Specter's approach drew some support at a Judiciary Committee hearing this week.

Many lawmakers have said the main cause of congressional inaction is that they know so little about the spying program, which is highly classified. Only the GOP and Democratic leadership and members of the House and Senate intelligence committees have been briefed on it.

On the issue of military tribunals, the Supreme Court's ruling requires Congress to pass legislation if the detainee trials at Guantanamo Bay, Cuba, are to proceed. But there is a deep divide between the administration's civilian and military lawyers over what rules are necessary. For example, the administration supports allowing the use of coerced statements against defendants and permitting evidence to be withheld from the accused.

Such proposals have been publicly criticized by military lawyers, as well as Sen. Lindsey Graham, a South Carolina Republican. A former lawyer in the Air Force, Graham has insisted that the tribunals should be modeled closely on the Uniform Code of Military Justice.

David G. Savage and Maura Reynolds write for the Los Angeles Times.

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