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(Newsweek) How much power should he have?

                                      

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In this week's cover story "How Much Power Should They Have?" Thomas and Klaidman look at the administration's ambitious, post-9/11 program of electronic spying on U.S. citizens; the ferocious, behind-the-scenes infighting that slowed it for a time; and the questions it raises about how much power we should cede to the White House, particularly in wartime. The full dimensions of the administration's secret program have only gradually become clear. The legal justification for it, in addition to the commander in chief's warmaking power under the Constitution, was a congressional resolution that was shouted through in September 2001, three days after the attacks. Most congressmen seem to have assumed they were voting to authorize an attack on Al Qaeda and the Taliban in Afghanistan. But a former White House official involved in the drafting said the understanding in the administration was that the president was seeking "an express grant of authority from Congress to maximize the power that could be used"-meaning all kinds of power to seek out, detain and kill terrorists.

When the NSA eavesdropping story leaked, the Bush administration immediately claimed that it had briefed congressional leaders on several occasions. But the briefings appear to have been sketchy and ultra-secretive. Senator Tom Daschle, the Senate Democratic leader at the time, tells Newsweek, "The presentation was quite different from what is now being reported in the press. I would argue that there were omissions of consequence." At his briefing in the White House Situation Room, he was forbidden to take notes or bring staff or speak with anyone about what he had been told. "You're so disadvantaged," he says. "They know so much more than you do. You don't even know what questions to ask."

Given Congress's pliability after 9/11, several commentators have wondered why the White House did not ask Congress to amend the Foreign Intelligence Surveillance Act (FISA), which required intelligence agencies to obtain warrants before eavesdropping on "U.S. persons," to allow the sort of warrantless data mining and wiretapping that has set off the current flap. A White House official who declined to be identified says that the administration feared a congressional debate would have tipped off the terrorists to secret "sources and methods" used by the NSA and other spy services.

Although the details are unclear, it appears that Comey's objections were key to slowing the warrantless-eavesdropping program in 2004 for a time. According to several officials who would not be identified talking about still-classified matters, Comey (among other government lawyers) argued that the authority for the program -- the 2001 "use of force" resolution -- had grown stale. It was time to audit the program before proceeding in any case, Comey said. But in March 2004, White House chief of staff Card and White House Counsel Gonzales visited Ashcroft, the seriously ill attorney general, to try to get him to overrule Comey, who was officially acting as A.G. while Ashcroft was incapacitated. Ashcroft refused, and a battle over what to do broke out in the Justice Department and at the White House. Finally, sometime in the summer of 2004, a compromise was reached, with Comey onboard: according to an account in The New York Times, Justice and the NSA refined a checklist to follow in deciding whether "probable cause" existed to start monitoring someone's conversations.

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