Congress Is Stalled on New Terror Laws

This was supposed to be the year for Congress to write laws to govern the war on terrorism. But as the summer recess got underway Friday, there were few signs that the Republican-controlled House and Senate were close to setting any 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 confirmed news reports that he had secretly authorized the National Security Agency to intercept some phone calls and e-mails into and out of the U.S. 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.

In late June, the Supreme Court struck down the president’s special military tribunals for alleged terrorists, ruling Congress must adopt laws to govern such prosecutions.

Some lawmakers favor the use of the military’s traditional rules for courts-martial, but 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 yet to approve any legislation.

“Clearly, Congress has not stepped up,” Senate Judiciary Committee member Mike DeWine (R-Ohio) said during a committee hearing Thursday. “Congress needs to act.”

Civil libertarians and military lawyers who favor tighter oversight of the administration’s conduct of the war on terrorism say they are not optimistic. They do not think lawmakers are likely to put new restrictions on the White House as congressional elections approach.

“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, a retired Navy rear admiral and former chief judge advocate general of the Navy. He is now dean of the Franklin Pierce Law Center in Concord, N.H.

“Many of the members simply want to rubber-stamp the administration’s prior commissions.”

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

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) this year accused Bush and the NSA of breaking the law by authorizing the warrantless wiretaps.

To prevent unchecked snooping on private phone calls in the U.S., the Foreign Intelligence Surveillance Act of 1978 says the government’s “exclusive” legal means for monitoring such communications is proving to a judge that it has good reason to think its target is linked to a foreign government or international terrorist group.

Administration officials argue that the act’s warrant requirement hinders quick detection of terrorist plots.

After meeting recently with Bush and Vice President Dick Cheney, Specter agreed to press for legislation removing the act’s designation of warrants as the “exclusive” means of legally conducting such surveillance. This would permit the government to bypass the warrant requirement.

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

“It seems to me you’ve worked out a wise, appropriate route,” said Sen. Sam Brownback (R-Kan.). “I think this is a good compromise.”

Meanwhile, several California Democrats have introduced bills to reaffirm the principle that the government must have a warrant before it listens in on phone calls. The legislators include Sen. Dianne Feinstein and Reps. Jane Harman of Venice and Adam B. Schiff of Burbank.

But their bills are not seen as likely to win in GOP-controlled committees.

Many lawmakers attribute congressional inaction mainly to members’ lack of knowledge 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.

But even those who do have the details don’t seem to agree on what Congress should do.

Rep. Heather A. Wilson (R-N.M.), a member of the House intelligence panel, has introduced a bill that would change the law to accommodate the administration’s spying program.

Harman says she supports the program but thinks current laws are appropriate. Instead of changing the rules, she would give the administration more resources to help it comply with the surveillance act.

Wilson’s proposal is “way too broad and way too vague,” Harman said. “I think she gives away too much.”

Said Wilson: “Rep. Harman’s bill looks to resources.... That’s useful but not sufficient.”

On the issue of military tribunals, the Supreme Court’s ruling requires Congress to pass legislation guiding any detainee trials at Guantanamo Bay, Cuba. But there is a divide between the administration’s civilian and military lawyers over what the rules should be.

For example, the administration wants to be able to use coerced evidence and to withhold other evidence from defendants.

Such proposals have been publicly criticized by military lawyers, as well as Sen. Lindsey Graham (R-S.C.), a former Air Force lawyer. Graham has insisted the tribunals should be modeled on the Uniform Code of Military Justice.

Congress also must decide what constitutes a war crime.

Salim Ahmed Hamdan, a former driver for Osama bin Laden, was held at Guantanamo and charged with conspiracy. That is a common charge in criminal cases, but the high court ruled in Hamdan vs. Rumsfeld that conspiracy is not a war crime.

The government must show that Hamdan committed a “hostile and warlike act” against Americans, not simply that he had ties to Al Qaeda, Justice John Paul Stevens said in the June ruling.

Committee leaders in the Senate and House said they would work with the administration to draw up legislation to be ready in the fall.