Legislation aimed at President Bush's once-secret program for wiretapping U.S.-foreign phone calls and computer traffic of suspected terrorists without warrants appears stalled, notwithstanding Mr. Bush's request this week that a lame-duck Congress give it to him.
Senate Democrats, emboldened by Election Day wins that put them in control of Congress as of January, say they would rather wait until next year to look at the issue. "I can't say that we won't do it, but there's no guarantee that we're going spend a lot of time on controversial measures," Democratic Whip Richard Durbin of Illinois said.
In Senate parlance, that means 'no.'
Republicans for months have known that no bill accomplishing Mr. Bush's goal could get filibuster-proof support from 60 senators. Sealing off any hope was what Democratic leader Harry Reid put on his lame-duck to-do list. The warrantless domestic surveillance bill was conspicuous in its absence.
As for next year, Mr. Bush should not expect Democrats to allow such legislation to pass without language establishing considerable congressional oversight of any expansion of warrantless wiretaps.
"We have been asked to make sweeping and fundamental changes in law for reasons that we do not know and in order to legalize secret, unlawful actions that the administration has refused to fully divulge," said Sen. Patrick Leahy of Vermont, the next Judiciary Committee chairman. "If legislation is needed for judicial review, then we should write that legislation together, in a bipartisan and thoughtful way."
The Bush administration has a backup plan. In speeches over the next few weeks, the Justice Department will launch a new campaign for the legislation by casting the choice as one between supporting the program or dropping it altogether — and appearing soft on al Qaeda.
Attorney General Alberto Gonzales will make the eavesdropping program the focus of a Nov. 18 speech at the U.S. Air Force Academy. Kenneth L. Wainstein, assistant attorney general for the national security, will make a similar pitch Wednesday to the American Bar Association.
Leahy said that monitoring communications of suspected terrorists is essential but that "it needs to be done lawfully and with adequate checks and balances to prevent abuses of Americans' rights and Americans' privacy."
After the Sept. 11, 2001 terrorist attacks, Mr. Bush ordered the National Security Agency to monitor communications potentially related to al Qaeda between people in the U.S. and those overseas. He bypassed normal requirements for court approval of such eavesdropping, and the program came under harsh criticism after it was disclosed last December by The New York Times.
Democrats and Republicans on the intelligence and judiciary committees spent much of the year trying to find out details from the administration, to little avail. Much of the information is classified, and the White House has insisted that revealing it would mean compromising the war on terrorism.
The House passed a bill in September to allow warrantless wiretaps under certain restrictions: House and Senate intelligence committees and congressional leaders would have to be notified, the president would have to believe that a terrorist attack is imminent, and certification would have to be renewed every 90 days.
A Republican measure in the Senate favored by the administration would require the Justice Department to report twice a year to the House and Senate intelligence committees the number and kind of any such operations. It would permit the surveillance to continue for up to one year without a warrant.
The House bill is H.R. 5825; the Senate bill is S. 3931.