Eavesdropping Clamor Will Shape Bush's New Year

President Bush had hoped to shake off a disappointing and draining year by starting 2006 with a quick victory on the confirmation of Supreme Court nominee Samuel Alito, followed by a State of the Union address laced with big themes and modest goals. Instead, he'll have to start the new year much as he ended the last one—in the political trenches.

The furor over the President's off-the-books program for eavesdropping on al Qaeda suspects, and the postponement by Congress of a renewal of the Patriot Act, mean that a midterm election year will kick off with a debate over civil liberties, government oversight and presidential power in the post-9/11 era. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) expressed dismay over the controversial National Security Agency eavesdropping program, and congressional aides tell TIME that he plans to hold hearings in late January or early February, probably in conjunction with the Senate Intelligence Committee. Such hearings would follow the Alito confirmation process. A second possibility is a joint investigation by the two committees. The aides said that either way, the specifics of the program would be discussed behind closed doors, while the public portion of the hearings would focus on presidential power. Specter has even said there could be new legislation relating to the president's authority, although he has not been specific about his ideas. “This will include a look at how previous presidents have exercised their authority,” said a congressional source.

Despite the protests of Democrats and the concerns expressed even by some Republicans, Bush strategists are “absolutely” convinced they are ultimately on the winning side of the eavesdropping issue, according to a White House source. President Bush allowed the National Security Agency to wiretap certain calls without seeking a warrant—even retroactively—from the Foreign Intelligence Surveillance Court that had been created specifically to issue such warrants while providing a measure of judicial oversight. The White House has said that all of the calls involved al Qaeda suspects, and that at least one party is always outside the country—although the New York Times has reported that a small number of domestic calls were inadvertently picked up for technical reasons, such as an international cell phone being used within the United States. Mark McKinnon, a top strategist in both of Bush's presidential campaigns, said on MSNBC's “Hardball” that both the NSA program and the Patriot Act extension put Republicans squarely on the side of national security. “This is a debate we'll stand up and we'll proudly engage in,” he said.

The White House hopes voters come to see the issue as a political dogfight rather than a challenge to Bush's honesty or competence—which is how some Democrats want to paint it. Republican strategists stress the security dimension, and point to new laws in Britain, France and other democracies that allow aggressive counter-terrorism techniques. Democratic National Committee chairman Howard Dean, however, has characterized the eavesdropping as “extra-legal activity” that is “disturbing” and “unnecessary.” At least two Democrats on Capitol Hill have said Bush's actions could be impeachable. Cooler heads in the party plan to point to objections registered by Democratic leaders after they received secret briefings on the program. But House Intelligence Committee chairman Peter Hoekstra (R-Mich.) went before television cameras to argue that just writing a letter or two did not amount to an objection, and made it clear that he does not plan to support House hearings on the matter. Bush has warned that hearings could give “the enemy” a map to adjust tactics, but Specter still plans to move ahead.

New ammunition for Democrats turned up Friday morning when the former Senate Democratic leader, Tom Daschle of South Dakota, wrote in the Washington Post about his role in negotiations over 2001 legislation authorizing the use of force against al Qaeda—legislation the White House claims justifies the domestic surveillance. Daschle claims that Congress had rejected certain expansive language proposed by the administration. "Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and' after ‘appropriate force' in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused." Last Thursday, the Justice Department sent a formal, five-page legal justification for the program to Capitol Hill, but some Democrats said they were not satisfied. The letter said that the program is necessary "to detect and prevent a catastrophic attack," and said that the surveillance court (FISA) "could not have provided the speed and agility required" to create "an early warning detection system" after the Sept. 11 attacks. If Bush had sought a legislative change, the letter argues, that "would have tipped off our enemies concerning our intelligence limitations and capabilities."

Some of the President's longtime friends say he is at his strongest when he is down and the inner competitor kicks in. The early months of 2006 look set to test that theory.