SURVEILLANCE OFFERS

The most striking event of the Senate Judiciary Committee hearings Monday was how often Republican senators urged Attorney General Alberto Gonzales to work with Congress to find stronger checks and balances in the National Security Agency’s warrantless surveillance program. Committee Democrats, it was clear from their questions, wanted to go further than that, but certainly the GOP suggested several positive ways to address an executive branch that too often forgets about the legislative.

And it was assuring to see Congress, however gently, reassert its role to the White House, an absence that has been apparent since President Bush took office.

At issue is whether Congress authorized programs such as the NSA’s in 2001 when it approved the Authority on the Use of Military Force. That act tells the president to use “all necessary and appropriate force” to stop terrorists. The administration argues that this supersedes the Foreign Intelligence Surveillance Act, which sets specific restrictions on warrantless electronic surveillance.

There’s no language in the AUMF saying it overrules FISA. Several senators, including Maine Sens. Olympia Snowe and Susan Collins, say it wasn’t their intention in voting for AUMF to give the president that authority. At the committee hearing Monday, ranking member Patrick J. Leahy of Vermont reminded Mr. Gonzales, who asserted the AUMF granted authority no matter what some senators might think, the general rule doesn’t override the specific prohibition and that Congress knew what it was doing when it passed both statutes.

The White House has not consulted Congress to the degree that previous presidents have on almost any issue, so the lack of communication on this one isn’t surprising. Several committee Republicans, including Lindsey O. Graham of South Carolina and Mike DeWine of Ohio invited Mr. Gonzales and the president to meet with lawmakers to work out their concerns.

Chairman Arlen Specter suggested putting the program before the FISA court to judge whether the White House had the authority. The attorney general was disappointingly noncommittal to these proposals, as if a possible constitutional fight wouldn’t much matter.

It would, and a lack of cooperation now also would, as Sen. Graham observed, make it “harder for the next president to get a force resolution if we take this too far.”

With both parties in Congress certain the White House went too far in depending, in part, on the AUMF to justify its program, the issue won’t die until Congress and the administration establish the breadth of the program and develop a secure means for Congress to be assured that the surveillance is as narrow as the White House claims. Legislation, if necessary, could follow.

Republicans senators have made the administration a couple of generous offers. Democrats would likely go along, even if not entirely satisfied. There’s no reason for the White House to turn Congress down.