Since George W. Bush became president, Republicans in Congress have nearly always marched in lock step with him. In large measure, their clout as lawmakers was enhanced by standing shoulder to shoulder with the president.
But that equation may be changing, and a crucial test comes next week when a Senate hearing opens into Bush’s domestic spying program.
The hearing’s tenor rests on a central question: Do the Republicans who control Capitol Hill have greater loyalty to Congress as an institution or to the president who heads their political party?
The National Security Agency controversy may be the first of the Bush presidency to place Republicans’ roles as lawmakers and politicians so directly in conflict. Some GOP lawmakers have been less vocal than usual in defending the president, a sign that many have not made up their minds which role to put first.
“I think everyone wants to keep an open mind,” said Sen. Orrin G. Hatch (R-Utah), a member of the Judiciary and Intelligence committees. “These are difficult issues to resolve.”
Critics accuse the president of bypassing the Foreign Intelligence Surveillance Act passed by Congress in 1978 and ordering spying and wiretapping on U.S. soil without the warrants or judicial review the law requires.
The accusation goes to the heart of the concept of the separation of powers. When, if ever, does the president have the right to ignore or skirt an act of Congress?
As lawmakers, Republicans’ instinct would be to protect the prerogatives of the legislative branch, insisting the president “faithfully execute the laws” of the country, as required by the Constitution. But as members of the GOP, their instinct would be to stand by their president, portraying the controversy as yet another example of Capitol Hill’s partisan politics.
So far, both themes can be heard in Republicans’ public comments; it remains to be seen which will prevail.
“There’s lots of case law that indicates that the president can do what he says he’s doing, but none of it is Supreme Court law,” Hatch said. “There are lots of very great concerns too about civil liberties and warrantless surveillance. So those are the two sides we are trying to weigh.”
The president has offered two main rationales for the surveillance program. First, that his authority as commander in chief gives him the inherent right to order such wiretaps. Second, that when Congress voted to authorize the use of force against Al Qaeda, that act implicitly gave the president the right to conduct warrantless domestic spying, overriding any previous legislation.
The administration sometimes adds a third argument: Even if the 1978 FISA law is relevant, it is outdated and unable to address the demands of the Internet age.
A handful of Republicans have been among those expressing doubt about the validity of those arguments.
“I don’t believe from what I’ve heard ... that he has the authority now to do what he’s doing,” Sen. Chuck Hagel (R-Neb.) said last week. “Now, maybe he can convince me otherwise, but ... he just can’t unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law.”
Many lawmakers say that if the FISA law was outdated, the administration’s obvious response would be to ask for changes, which the president chose not to do.
Sen. Arlen Specter (R-Pa.), the Judiciary committee chairman, suggested the administration might have acted with the best of intentions but that, rightly or wrongly, the president chose to bypass Congress.
“We’re not going to give him a blank check, and just because we’re of the same party doesn’t mean we’re not going to look at this very closely,” Specter said.
The controversy strikes a special chord with senators from the GOP’s libertarian wing, who banded together late last year to help stall reauthorization of the Patriot Act, the antiterrorism law passed in response to the Sept. 11 attacks on New York and the Pentagon.
These Republicans -- Hagel, John E. Sununu of New Hampshire, Larry E. Craig of Idaho, Lisa Murkowski of Alaska -- joined Democrats in demanding more privacy protections in the Patriot Act.
“You have a substantial group of genuine conservatives who are very uneasy about ‘Big Brother’ and who have a long-standing, outspoken drive on privacy issues,” said Norman Ornstein, an expert on Congress and head of the American Enterprise Institute think tank. “It doesn’t matter who the president is -- they don’t like the idea of the government looking over people’s shoulders.”
He added: “I think if you took a secret ballot in the Senate and House, you’d get a majority of Republicans joining on to those [libertarian] concerns,” Ornstein said. “But the majority of Republicans in both houses see themselves more as field soldiers in the president’s army than as independent actors in an independent branch of government. ... [That group is] very reluctant to challenge their president and to do so in a way that gives Democrats a political issue.”
Republicans taking the administration’s side of the dispute have begun to speak out more forcefully, arguing that the president did no wrong.
“The fact is, the president not only has the authority, but he has the duty under our Constitution to protect this nation from attack. And he is using all of the authorities that he needs,” Sen. Mike D. Crapo (R-Idaho) said at a recent news conference with five other GOP senators.
Specter’s hearings are expected to focus on the legal basis of the NSA’s domestic spying, not on the nature of the program itself. On Monday, Atty. Gen. Alberto R. Gonzales is likely to spend a full day fielding questions.
In coming weeks, Specter is hoping to persuade former administration officials to testify, as well as former President Bush and former President Carter, who signed the FISA act.
Congress also is gearing up to grapple with whether the administration fulfilled its obligation to keep Congress informed of intelligence operations.
That question falls more in the jurisdiction of Senate and House Intelligence committees, whose chairmen have not scheduled public hearings on the controversy. Members of the Senate Intelligence panel are set to meet in closed session Thursday to discuss it.
The president has asserted that “appropriate members” of Congress have been kept informed about the NSA domestic wiretapping. The administration chose to give periodic briefings to eight members -- the Republican and Democratic leaders of each chamber, plus the chairman and ranking Democrat member of the Intelligence committees in both houses.
Those members were forbidden to discuss the matter with any other members of Congress, or consult with staff members or lawyers, even those with top secret security clearances.
As a result, some lawmakers say the administration’s efforts to notify Congress were inadequate. At least two -- Sen. John D. Rockefeller IV of West Virginia, the top Democrat on the Senate Intelligence committee, and House Minority Leader Nancy Pelosi (D-San Francisco) -- sent letters of protest to the White House or the NSA after being briefed, complaining they knew too little about the program to be comfortable with it.
Moreover, according to the 1948 National Security Act, the president is supposed to keep the full Intelligence committees informed about surveillance activities, not just the chairman and ranking minority-party member. The only exception was for “covert” operations; intelligence officials have acknowledged the NSA program cannot be characterized as “covert.”
As the top Democrat on the House Intelligence Committee, Rep. Jane Harman of Venice was briefed on the program, which she said she supported. But she said she was never briefed on its legal underpinnings and now believed the president inappropriately ignored FISA.
Harman said Republican colleagues had told her they were hearing from constituents concerned about the program and she was optimistic that House GOP leaders would respond.
“I think there is unease, and I think it is very conservative to want programs like this to comply fully with the law,” she said.
But Sen. Dianne Feinstein (D-Calif.), a member of the Senate Judiciary and Intelligence committees, is less hopeful that Republicans will demand accountability from the administration.
“I think ultimately, the Supreme Court will have to determine the legality of this,” Feinstein said.