For most of the last six years, the Bush administration has successfully argued that talking about Americans’ rights was a dangerous sign of pre-9/11 thinking.
And that it hardly ever needed a warrant to turn a two-person phone conversation into a party line.
But last week, Senate Democrats led by Chris Dodd, D-Conn., and Ron Wyden, D-Ore., managed to set up a small disconnect to that idea. Monday evening, Senate Majority Leader Harry Reid, D-Nev., pulled off the Senate floor a renewal of the Foreign Intelligence Surveillance Act that would give blanket legal immunity to telecommunications companies being sued for turning over their customers to the feds without asking for any warrants.
Immunity is a demand of the administration, which doesn’t like questions being asked about anything, and it seemed the Senate was prepared to fall in line. (The House has passed a new FISA bill without it.) The administration also liked the considerably expanded surveillance powers in the Senate bill.
But then things changed. Urged on by bloggers, Dodd announced that he would return from his presidential campaign in Iowa to filibuster the bill. He spent much of Monday on the Senate floor; still, the first vote to move things along passed 76-10.
Monday afternoon, Wyden – one of the 10 votes against fast-tracking the bill, and one of only two votes against it in the Intelligence Committee – spoke in support of Dodd’s effort. He pointed out that the documents supporting the administration’s position, including correspondence between the government and the telephone companies, was not even available to most senators, except Intelligence members and the leadership.
“Having read these documents, I can say, as one member of the Senate Intelligence Committee, that nothing in any of these opinions has convinced me that the administration’s warrantless wiretapping program was legal,” said Wyden.
“Now that the existence of the program has been confirmed, I can see no national security reason to keep most members of the Senate from being able to see these materials. As far as I can tell, these materials are being classified in order to protect the president’s political security, not our national security.”
In a floor dialogue with Dodd, they noted that Dodd, a Foreign Relations member with 26 years in the Senate, could not see the documents.
“It’s like a picture into reality,” Wyden said later about the awareness that most senators couldn’t see them. “An awful lot of the Senate is shrouded in illusion, shrouded in procedure. … When you read the documents, red flags go up.”
Phone calls came in from around the country, and senators’ concerns mounted. Monday evening, Reid announced he would pull the bill from the floor, and the Senate would try again in January.
“This is an issue that the American people are focused on,” said the majority leader. “I’ve gotten in the last week or so, thousands of inquires from all around the country. This is an issue they understand, they don’t like.”
Still, Reid’s spokesman told the Washington Post, the decision had nothing to do with the efforts by Dodd and other Democratic senators.
Wyden said only, “I was pleased that his statement on the bill being pulled echoed the statement I’d made on the Senate floor.”
Come January, there is a lot more to fight about in the bill. It includes an amendment, by Wyden, which would require more judicial authority for eavesdropping on overseas calls made or received by Americans. Aside from telecom immunity, the president threatens to veto the bill because of that limitation.
But there is suddenly a sense, after years of congressional compliance, that Congress might actually raise questions when the Bush administration demands new powers to listen in on Americans.
“I think the Senate has not been in step with the country,” said Wyden, “on how important it is to keep a balance between fighting terrorism ferociously and protecting privacy.”
Monday evening, Dodd said that the Senate may have gotten 500,000 comments on the issue. “I’d love to tell you that I did this on my own, but I had an army behind me. … We got some great support. Ron Wyden was terrific.”
Now, the fight goes to January.
“Between now and then,” said Dodd, “let’s build up a majority to defeat these guys and stop the assault on our Constitution.”
Nobody knows if it will happen.
But now we know it’s possible.