On the floor of the Senate, Ron Wyden today stepped up on two fronts. He first emphasized that the secret documents that include the legal justifications made by the Office of Legal Counsel for warrantless surveillance have only been offered for view by members of the Intelligence Committee and a few of the members of the leadership and not the full Senate. It is nearly impossible to get a full sense of this program, how the President and the executive branch sees their responsibilities under the law, and why they feel the telecom industry should be immunized from any illegal conduct, without seeing those documents. Senator Reid has actually asked the Administration to let all Senators see those documents, and Wyden went even further.
First, Wyden engaged in a dialogue with Senator Dodd about how the Senator from Connecticut, a 26-year member of the body and a senior member of the Foreign Relations Committee, is barred from viewing the documents. Next, he referred to Senator Whitehouse's discussion of the legal opinions and the implications they had for executive power. By allowing this legislation to go through without full disclosure of what the executive branch feels are its responsibilities under the law, we essentially allow their arguments to go unchallenged and give them the imprimatur of the Congress.
The second thing that Wyden discussed was his amendment in the Intelligence Committee, which was passed on a bipartisan basis, that would safeguard those Americans traveling overseas from being subject to warrantless surveillance. This was considered a poison pill from the standpoint of the Administration, but it's actually a very simple provision that would extend civil liberties and basic Constitutional rights to every American no matter their geographic space. Wyden explains it here:
Under current law, before conducting surveillance on an American citizen within the United States, the government must establish probable cause before a criminal court for law enforcement cases, or before the Foreign Intelligence Surveillance Court for intelligence cases. This means that the U.S. government needs a court-approved warrant to deliberately tap the phone conversations of an American living in Medford, Ore., or in Arlington. This protection, however, is not extended to Americans outside the country. If the U.S. government wants to deliberately tap the phone conversations of those same Americans on business in India or serving their country in Iraq, the attorney general can personally approve the surveillance by making his own, unilateral determination of probable cause.
During the Senate intelligence committee's consideration of legislation that would revise FISA, I offered an amendment that would require the government to secure a warrant from the FISA court before targeting an American overseas. This amendment, which was co-sponsored by Sens. Russ Feingold (D-Wis.) and Sheldon Whitehouse (D-R.I.), was approved by the committee on a bipartisan vote. Since then it has been upheld by the Senate Judiciary Committee, and I look forward to its consideration by the full Senate this week.
According to Wyden today, the chairs of the Intelligence Committee have come to him and suggested that there may be some unintended consequences as a result of this common-sense amendment. They are trying to work this out in a manager's amendment off the floor. But Wyden made clear that, if the result of that amendment doesn't meet with his approval, he will block unanimous consent on the bill.
So now this is the SECOND potential hold being put on this bill. It's clear that Wyden understands that his amendment represents a roadblock to signage for the President, and that the scheme will be to strip it out. He has now thrown down the gauntlet and announced his intention to block the bill if that takes its course. Of course, Harry Reid only honors the holds that the President likes, so it's unclear what effect this will have, or if a compromise will be reached and it will not come to that. However, adding an additional Senator's hold to the bill complicates the chances of it getting out of the Senate that much more.
The Republican arguments about this bill are absurd, claiming that as long as the Attorney General writes a note that something is legal, then it is (apparently Congress has no role), claiming that legal counsels for major corporations shouldn't be expected to know US law, etc., etc. But I think the biggest news of the day so far is Wyden's attacking the bill from a completely different angle, seemingly with the knowledge that a bipartisan amendment passed by both the Intelligence and the Judiciary Committees is about to be stripped out of the final bill.
UPDATE: There's an interesting discussion of the implication of Wyden's statement starting here. While this particular motion to proceed is obviously a done deal, what I think Wyden is saying is that before they move to a vote on the final passage of the bill AFTER THE CONFERENCE REPORT, if his bipartisan amendment regarding Americans traveling abroad is gutted, he would object to UC on that vote. I think he's setting up a hurdle further down the road in the event that this happens. The manager's amendment could be added before final passage of this bill in the Senate, or after the conference report. He's signaling that the final bill had better have his amendment or he will object. IIRC Wyden could object to the establishment of the conference committee; I remember Republicans in the Senate doing so this year.