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Tactics of war on terror to occupy Congress

Lawmakers will move this week on how to proceed with warrantless surveillance and treatment of detainees.

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After months of inaction, Congress is poised this week to move on two tough issues in the war on terror: warrantless surveillance of Americans and the treatment of detainees.

How these matters are resolved could rein in the power of a wartime president, reversing half a century of retreat on the part of Congress – or not.

Both cut across party lines and between House and Senate. But, for now, the most immediate battle is how open the resolution of these issues will be to the public.

More than seven months after the leak of a top-secret warrantless surveillance program, the House and Senate are both pressing to get the program right with the law.

A Senate plan – personally negotiated with Vice President Cheney and President Bush by Judiciary Committee chairman Arlen Specter (R) of Pennsylvania – would let a secret court rule on the program's constitutionality. Under the plan, the public would not learn more about the scope of the current surveillance or the court's reasons for supporting or revising it.

A House version – introduced last week by Rep. Heather Wilson (R) of New Mexico and supported by the chairman of the Judiciary and Intelligence committees – would rewrite the rules for domestic surveillance in public.

At issue is whether the president can disregard a law of Congress on the grounds that it conflicts with the president's "inherent powers" under Article II of the Constitution. When Congress passed the Foreign Intelligence Surveillance Act in 1978, it set up FISA court as the exclusive means to obtain a warrant for secret surveillance. After the 9/11 attacks, Mr. Bush authorized the National Security Agency to intercept domestic calls and e-mails without a warrant if they involved contacts with suspected terrorists abroad.

Senator Specter says his plan deliberately does not mandate the president to submit the program to court, "because the president did not want to institutionally bind presidents in the future." Nor, he says, is there any requirement that the secret FISA court release its opinion to the public.

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