Bush Says, Bring It On; the Critics Will

By KAREN TUMULTY, Mike Allen

Up until a couple of weeks ago, George W. Bush's script to put the misery of 2005 behind him had seemed destined for a smooth rollout. Buoyed by the apparent success of the Iraqi elections, the President would score a quick confirmation victory with Supreme Court nominee Samuel Alito, follow it up with a soaring State of the Union address and then return to full campaign mode with a sweep around the country, talking about big issues like immigration and Medicare and throwing the spotlight on a resurgent economy. But the revelation that his Administration has been spying in this country without warrants--illegally, critics say--may have put a crimp in Bush's plan to climb back on top of the agenda as the new legislative session begins. "When Congress comes back," warns a top G.O.P. congressional aide, "domestic surveillance and privacy issues will be all over the front pages."

To which the President and his strategists seem to be saying, Bring it on. From practically the moment news of the domestic-surveillance program hit the front page of the New York Times, the White House decided its strategy would be to "overwhelm the skeptics, not back off, not change anything about the program and really home in very strongly on the fact that this is a legitimate part of presidential warmaking power," says an adviser. Bush launched a ferocious defense in his Dec. 17 weekly radio address, inviting in a network camera to capture the rare live delivery of the speech as he declared that the no-longer-secret surveillance program makes it "more likely that killers like these 9/11 hijackers will be identified and located in time." G.O.P. strategists argue that Democrats have little leeway to attack on the issue because it could make them look weak on national security and because some of their leaders were briefed about the the National Security Agency (NSA) no-warrant surveillance before it became public knowledge. Some key Democrats even defend it. Says California's Jane Harman, ranking Democrat on the House Intelligence Committee: "I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities."

But the NSA operation--and particularly Bush's decision to bypass the generally amenable Foreign Intelligence Surveillance Court for authorization--has drawn fire not only from liberal Democrats but also from some of the most conservative in Bush's party, in which government restraint is a fundamental precept. "There is a test of Republicans on this," says activist Grover Norquist, normally a White House ally. "The country will let you get away with this in the wake of 9/11, but that doesn't make it right." And even if Republicans are prepared to bless Bush's program, they know it theoretically would have to mean extending such sweeping Executive power to, say, a President Hillary Clinton.

The first test of the controversy's political resonance could come as early as next week, with the opening of Alito's confirmation hearings before the Senate Judiciary Committee, whose fiercely independent chairman, Republican Arlen Specter, has called the Administration's rationale for the no-warrant surveillance "a stretch." Opponents of Alito's nomination, who had planned to put the abortion issue on center stage, are quickly retooling their strategy. Says Patrick Leahy, the top Democrat on the Judiciary Committee: "I will be asking Judge Alito a lot of questions about checks and balances and what he can say that would convince us he would be willing to act as a check and a balance."

Alito's record could give his critics plenty of ammunition. The Third Circuit judge has long been an advocate of the unitary-executive concept, a constitutional interpretation that is a favorite of Bush's and Vice President Dick Cheney's, which argues that the President should have nearly total control of Executive Branch agencies and resist any incursion on that power by Congress. And in a 1984 memo recently released by the National Archives, Alito--at the time a lawyer with the Reagan Administration Justice Department--argued that government officials who order illegal domestic wiretaps can be immune from lawsuits. The case in question arose in 1970, when then Attorney General John Mitchell allowed the FBI to wiretap Vietnam War protesters suspected of plotting to kidnap National Security Adviser Henry Kissinger.

Administration officials concede that the controversy will inject a volatile new element into the confirmation debate but say Alito will resist getting drawn in. "It will form the basis for questions and possible senatorial grandstanding, and the hearing may be more hostile than it was with [recently confirmed Chief Justice John] Roberts," an official involved in the nomination tells TIME. "But like any nominee to the court, you're not going to see him predict any cases or make any commitments to the committee." As for that two-decade-old memo, it was a domestic matter that has "no nexus, no connection, no link" to the current debate, says Steve Schmidt, a White House aide helping shepherd Alito through the confirmation process.

The Alito nomination is not the only issue on which the Administration will have to confront the controversy. It will add to Bush's already difficult struggle to renew the most controversial provisions of the USA Patriot Act, which was passed after 9/11 and gave law enforcement broad new powers that have since unsettled some on both the left and the right. Congress last month disappointed the White House by giving the provisions only a five-week extension, setting a new expiration date of Feb. 3. And some kind of congressional investigation into the NSA spying program seems certain. Specter, for one, has promised hearings early in the year--a move, sources tell TIME, that the White House is hoping to head off by convincing the Senator to defer to the Intelligence Committee, whose hearings would be behind closed doors and classified. "They're going to lean on Specter very hard not to hold hearings," says a Republican official. Bush has warned that any public hearings on programs would simply tip off terrorists and invite them to adjust their tactics, and he says, "This is a war."

That's a theme Americans will hear again and again leading up to the State of the Union address, which officials say will position Bush as a "strong and decisive leader," prosecuting the war on terrorism as he reins in spending at home and spreads democracy around the world. "It's Bush as Churchill, Bush as Reagan and Goldwater and Bush as Woodrow Wilson," says a presidential adviser. But when civil liberties are involved, inviting historic comparisons can be a dangerous business. "This is an Administration," says Leahy, "that has tried to bypass courts and the legal procedures more than any since Richard Nixon."

With reporting by Perry Bacon Jr./Washington