Backlash Builds on a Quiet Hill ; Congress Backs War, but Hearings Today Reflect Ire over Bush's Unilateral Decisions

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If history is any guide, wartime Congresses are usually irrelevant. They may thunder and roar, but in the end, the president decides the conduct of a war - including curtailing cherished liberties when deemed necessary.

That's a record some members of the 107th Congress are eager to revise. And today's hearings in the Senate Justice Committee aim to serve notice to the Bush administration that Congress will not be left out of this war on terrorism.

Unlike some other wartime legislatures, this Congress has no doubts on the purpose of this war. Lawmakers passed new anti- terrorist laws with barely a hitch, including broad new powers to detain those suspected of a connection with terrorist activity, to track their funds, and to eavesdrop on private conversations.

But a backlash is brewing on Capitol Hill over steps the Bush team has taken since then to expand its powers to conduct the war - all without consulting or even informing lawmakers.

These include new Justice Department regulations that would allow the government to listen in on detainees' conversations with their attorneys and an executive order that allows the trial of suspects in military tribunals instead of US courts.

What bothers some lawmakers isn't just the substance of these changes, which they say infringe on constitutional protections that Americans and many noncitizens living in this country have come to expect. It's the way they were simply announced: no consultation. Not even any hint in advance that the administration believed it needed these additional powers.

This lack of consultation is especially galling to the top members of the Senate Judiciary Committee: Chairman Patrick Leahy (D) of Vermont and ranking Republican Orrin Hatch of Utah. They had personally negotiated terms of the new antiterrorist law with the White House and Justice Department, and then sold it to the Senate.

These senators found out about the new regulations from the news media. After sending several letters and receiving no reply, the two senators set a deadline for responses and called on the attorney general to set aside "several hours" to answer these concerns before the full Senate Judiciary Committee. Mr. Ashcroft has agreed to appear on Dec. 6.

At issue will be the extent to which Congress can hold the executive branch accountable for its conduct of this war.

"One of the themes of the last month or two has been the cutting out of the Congress and the courts from being part of the new rulemaking and legislating," says Kit Gage, director of the First Amendment Foundation, a civil liberties group. "That's why it's crucial that the Senate hold the Justice Department accountable for the many dramatic, and in many ways draconian, changes taking place. …