The Dems: More Bark Than Bite

Before they took control of the House and the Senate, Democrats had a lot to say about George W. Bush's use of Presidential power and what they claimed was Republican complicity in eroding both civil liberties and the authority of Congress. When the G.O.P. pushed through a bill granting Bush the ability to suspend the ancient right of habeas corpus for terror suspects, the man who would become the Democratic Senate majority leader after the election, Harry Reid, said, "The framers of our Constitution understood the need for checks and balances, but this bill discards them." Across the country Democratic candidates for both chambers of Congress painted their opponents as rubber stamps for Bush's failed policy in Iraq. And the day before the Nov. 7 vote that would vindicate his chairmanship of the Senate Democratic Campaign Committee, New York's Charles Schumer said voters were flooding to Democrats in part because they had decided that the country needed "some checks and balances in this government."

Now that they're in charge, Democrats are still talking the talk. This week, they are hammering away at Bush ahead of his Iraq speech while planning a resolution opposing his proposed troop increase in the war. Today incoming Judiciary chairman Patrick Leahy held hearings on what he says are executive branch infringements on Americans' privacy. And on Thursday Leahy will have attorney general Alberto Gonzales appear before his panel for a wide-ranging oversight hearing, which the committee's spokesperson says will dig into the civil liberties issues Democrats raised in the campaign.

But when it comes to actually taking any action to check Bush's war powers, there's not much bite to the Democrats' bark. Which raises the question: will Democrats use their new power to rein in what they say is an overreaching President? Or will they choose to continue what proved to be a successful political strategy when they were in the minority: criticizing the Administration for unpopular policies while avoiding taking action themselves that could prove equally unpopular?

On Iraq, Hill Democrats have chosen the latter course. Sen. Edward Kennedy yesterday introduced a bill to block funding for deploying additional troops to Iraq. But Reid and the Democratic leadership prefer a non-binding, "sense-of-the-Senate" resolution opposing the troop increase that is designed to embarrass Bush by peeling off dissenting Republicans, without actually taking any action to block the move. Kennedy's proposal, leadership aides say, is a stalking horse designed in part to placate the base by attacking Bush while leaving Democrats who support the leadership's alternative safe from accusations they don't back the troops.

And if war opponents are likely to be disappointed by the Democratic response to Bush's proposed troop increase, those who believe he is eroding American civil liberties will be even more downcast in coming weeks. Yesterday at a press briefing in the Senate Hart office building, American Civil Liberties Union Executive Director Anthony Romero said that while Democrats had not been willing to obstruct Bush's war on terror initiatives before the November elections, he hoped the Democratic rout might have changed the political calculation. "We hope that the Democrats have found their spines again," he said.

Leahy, the incoming Judiciary chairman, is doing his part. In addition to the hearings, he and the ranking minority leader, Arlen Specter, have introduced a bill that would roll back Bush's habeas-overriding powers. Leahy, Wisconsin's Russ Feingold, and New Hampshire conservative John Sununu today will introduce a bill that would require executive branch agencies regularly to report on data mining efforts. On the record, Harry Reid's office is nominally supportive of these efforts. "The new Congress will review all aspects of the war on terror to see what improvements are needed," says Reid spokesman, Jim Manley.

But privately top Democratic Senators, aides and advisers say the political calculation has not changed since before the election. While Bush and his policies are unpopular in the extreme, Americans still support a strong hand at the White House when it comes to national security matters. From the Democrats' perspective, that means plenty of willingness to criticize Bush on all fronts when it comes to his handling of national security and even the use of his war powers — but, at least for now, no overt efforts to curtail them.

"You're going to see many more hearings," Schumer said yesterday when I asked him if there was increased willingness of Democrats to confront Bush's war powers. North Dakota's Byron Dorgan, the Democrats' third ranking member of the Senate and an outspoken Administration critic, said he thought it was "a little early" to roll back Bush's expansion of executive power in the previous Congress. A Democratic judiciary staffer supportive of a rollback said, "We understand the political reality." And leadership aides say bluntly that short of new revelations that turn public opinion against expanded executive authority, the Democrats are going to avoid directly confronting the President.

Critics think this approach is short-sighted, arguing Democrats could get away with criticizing the President without curtailing him when they were in the minority, but risk looking hypocritical now that they're in charge on the Hill. The ACLU points to its own polling that it says shows Americans support pushing back against the President and cites three races to back the numbers up. In Montana and Ohio, Senate challengers opposed to the popular Patriot Act fended off harsh attacks from Republicans on their position, and in a key Connecticut House race the anti-executive authority position helped seal victory for the Democratic challenger. Still, "that doesn't guarantee that the Democrats have found their backbone," says ACLU Washington representative, Caroline Fredrickson.

Politically, however, it's hard to argue with a winning strategy. The ACLU's three races fly in the face of Harry Reid's victorious approach throughout the 109th Congress: hammer the President in every public forum on Iraq and executive overreach, but never, ever get on the wrong side of tough national security policies. Echoing the dominant centrist approach, California's Dianne Feinstein, who sits on both the intelligence and judiciary committees, told me yesterday she thinks "it is right to give the government reasonable leeway to protect Americans," while "having hearings and oversight is also helpful in clearing the air."

In the end, that means little legislative pushback in the war powers battle. Privately, leadership aides say there is no reason for Reid to get ahead of habeas cases working their way through the courts that could save Democrats the political pain of an open battle with Bush. Even Leahy's office holds out little hope of rolling back Bush's wiretapping program. And Reid's non-binding resolution on Iraq will do nothing to slow the reported imminent deployment of more troops to Baghdad. By the time the Administration's request for emergency funds for the war comes through next month, opponents of the surge will be in the position of having to vote against money for troops already in a war zone. And even the most outspoken critics of the Bush White House know that's a losing proposition.