A Terrible Bill, A Temporary Sigh of Relief

Memo from D.C., by Lisa Graves, Senior Counsel for Legislative Strategy

Senate Judiciary Committee Chairman Arlen Specter has attracted some good press for his saber rattling on President Bush's warrantless wiretapping program, but behind the headlines his bill, co-authored with Vice President Dick Cheney, would basically repeal the Fourth Amendment protections that were written into the Foreign Intelligence Surveillance Act in the wake of Watergate. As they say in the East, a sword is useless in the hands of a coward, which really means that empty threats to hold the president accountable are basically useless.

And so far no "leader" on the hill has been willing to issue a subpoena to the White House or the telecommunication companies to pierce through the rhetoric to find out how many Americans are having their Fourth Amendment and statutory rights to privacy violated by the NSA at the president's direction. The only way to get a subpoena for the truth issued from the hill is for there to be a majority willing to hold the president accountable and issue the legal command for the truth. This isn't a partisan issue--it's a constitutional issue and party loyalty should not trump the checks and balances designed to safeguard our liberty.

The lack of any real check against the president from Congress was evident in the blank check some in Congress tried to give the president right before they left for August vacations. Actually, the check isn't blank--it's filled in for the exact amount of power sought by the president: unlimited power to engage in warrantless wiretapping, without any mandatory judicial check. Here's what happened:

The Senate Judiciary Committee room was packed on Thursday, August 3rd, as many lobbyists and Senate staff waited to see if there would be a vote on the Cheney-Specter bill. Administration lobbyists sat in their usual seats behind the Republican staffers and while the cordoned off press area was overflowing. Slowly, the Members' chairs filled as Senator Specter waited for a quorum so he could push for a vote on his bill.

Once a sufficient number of Senators showed up, he starting asking for a vote on his extremely controversial and extreme bill to legalize the president's spying on Americans. But, as you might imagine, members of Congress wanted to debate this radical effort to re-write the law. Actually, most of the debate came from the Democratic side of the room, while Republicans chatted amongst themselves, having already pledged to due what Dick wants, Vice President Cheney that is.

Senator Leahy spoke strongly against the bill, as did Senator Durbin. Then Senator Feinstein began her eloquent and thoughtful remarks. Mid-way through, Chairman Specter interrupted her to ask her how much longer since Republican Senators were eager to vote and leave, and she politely continued. When she concluded the chairman noted that she had spoken for a whole 15 minutes, actually not very long when you consider what is at stake as Senator Leahy pointed out--especially since she serves on both the Judiciary and Intelligence Committees, has been briefed into some of the NSA programs and still opposes the Cheney-Specter bill.

Senator Specter actually asserted that his bill's language that the president should be able to wiretap outside of FISA was language already in the Foreign Intelligence Surveillance Act, which would be mistaken, to say the least. Senator DeWine spoke in favor of approving the NSA's surveillance program and as Senator Feingold and Schumer sought recognition, the clock high on the wall by the frieze of astrological signs (clearly from a different era) buzzed to signal a vote on the floor of the Senate.

Senator Specter recessed the hearing to reconvene in the president's room right next to the Senate chamber right after the vote. Staff and press quickly gathered materials and began the walk toward the Capitol on the nearly 100 degree day. We had to run the gantlet to get into the room, which is hard for the public to access. Once staff and press assembled in the room with big, old red leather chairs, Senator Specter entered the room. He hit the gavel hard and said someone had invoked the "two-hour" rule. The rule prevents the committee from meeting for two hours past the beginning of that legislative day. This is so members can participate in floor debates in spite of endless committee meetings.

Several people in the bipartisan crowd wanted to applaud or do the wave, but did not. The Senator was obviously disappointed and joked that if there were no objections he would report his bill. He gaveled the meeting to a conclusion, saying he would get the bill out in September. Staff and press drained from the room, as my allies and I took advantage of the big red chairs and cool room to finally breathe a sigh of relief. It seemed that we had been holding our breath all morning and for months, hoping to make it through the summer without these bad NSA bills getting a vote and rolling back our fundamental rights.

As we left that day, staffers were joking that the jets to whisk members away were fueling on the tarmacs and that we would just have jet fumes in a few short hours. And honestly nothing could have smelled better than that, given how hard the White House had been pushing to get the bill it wrote signed by a vote so it could cash out our rights.