Rolling Back the President's Powers

As Capitol Hill prepares to battle the White House over George W. Bush's expanding war powers, moderate Senators on both sides of the aisle are quietly considering a range of options that would attempt at the very least to delineate the President's authority, if not roll it back. Bush's claims of wartime license are so great--the White House and Justice Department have argued that the Commander in Chief's pursuit of national security cannot be constrained by any laws passed by Congress, even when he is acting against U.S. citizens--that some Senators are considering a constitutional amendment to limit his powers.

In the public-opinion battle over domestic eavesdropping, Bush won the first round by arguing that he needed the unchecked power to learn "if there are people inside our country who are talking with al-Qaeda." With poll numbers split on the issue, spooked Senators hunkered down. But in recent days, Senate Democrats and the Judiciary Committee's Republican chairman, Arlen Specter, have fired off nine letters to the Justice Department and the White House demanding information on the domestic-spying program. At Senate hearings last week, the former head of the National Security Agency refused even in closed session to say how many phones had been tapped in the U.S. This reticence comes after conflicting public estimates from President Bush ("a few" U.S. phones) and his Homeland Security Secretary Michael Chertoff ("thousands").

A source familiar with the nascent constitutional amendment says one version would make clear that any actions by the President as Commander in Chief that affect domestic policies or U.S. citizens are subject to the exclusive control of Congress. "Congress can't completely cede wartime power to the President," the source says. Talk of an amendment could end up as merely a lever in hearings. Then again, the first 10 amendments--better known as the Bill of Rights--were demanded by the states in part to curb the Constitution's broad presidential powers.