Shame on us, in being so far behind and being so willing to rubber-stamp anything this Administration does. The Republican-controlled Congress refuses to ask questions, and so we have to pick up the paper to find out what is going on. We ought to fold our tents and steal away. —Senator Patrick Leahy, responding to a May 11, 2006, USA Today article detailing the NSA’s secret database tracking “tens of millions of Americans” in coordination with several telecommunications companies
If you believe the papers, Congressional Democrats have spent the better part of the past seven years vacillating between shock and outrage. They are thunderstruck by every White House scandal, stunned to discover another lie from the Bush Administration and positively livid each time they realize Bush is negotiating in bad faith. That is, of course, until they cave again. The Democrats’ current rush to pass the President’s intelligence bill repeats this sorry pattern.
After roughly three years of outrage over illegal domestic spying–complete with roars of “Shame on us!”–Democrats are now pushing legislation to validate more warrantless surveillance of American citizens. The same bill would also immunize any companies that assisted in illegal surveillance, squashing vital lawsuits that could provide the first public accountability for warrantless spying.
So much for all that outrage. On the campaign trail, Democrats may run hard against Bush’s assault on the rule of law. In Washington, however, too many of them just run from security fights with Bush.
The notable exception is Senator Chris Dodd, who announced that he will put a hold on any surveillance legislation that immunizes the telecommunications companies for participating in domestic spying “with apparent total disregard for their responsibility to protect the privacy rights of customers.” Beltway commentators swiftly derided Dodd’s move as political, since his presidential campaign is courting primary voters and netroots activists, two constituencies that value constitutional rights. And yes, fighting retroactive immunity for criminals is popular: Dodd’s campaign website traffic spiked tenfold after the announcement. But Dodd, a Senate veteran of twenty-six years, has longstanding and impeccable credentials in this area. He has led the battle to defend constitutional rights for years, fighting the Administration’s torture and detention policies, and he wrote a book about protecting rights during wartime, drawing on his father’s service as a prosecutor at Nuremberg.
Dodd’s aggressive move also pushes the intelligence fight into the thicket of Senate rules. Holds are generally honored by the majority leader, preventing legislation from a floor vote, but their authority officially derives from a senator’s power to filibuster. “Implicit in a request for a hold is the ability of a Senator to use parliamentary tools to filibuster or to delay consideration of the nomination or legislation at issue,” explains a report from the Congressional Research Service, an arm of the Library of Congress.
Dodd is not known for radical procedural maneuvers or filibustering. He vocally opposed last year’s unconstitutional Military Commissions Act, for example, but accepted pleas from Democratic leaders not to filibuster it. Last October, Dodd said he regretted that decision.
Now, facing a recalcitrant and secretive Administration, Dodd says he will not make that mistake again. “I rarely put holds on things. I can’t remember the last time I ever did. I’m not in the habit of filibustering,” he said. “There has been this constant drumbeat of erosion of constitutional rights, under the false dichotomy that we have to make a choice, as a people, [that] to be more secure we have to give up rights. And I fundamentally disagree with that concept…. The accumulation of it is stunning to me. And candidly I’m a little disappointed that the Democrats would agree to this [surveillance bill],” Dodd explained during a Friday meeting with the Nashua Telegraph editorial board.
The hold rankles Democratic Congressional leaders, who had planned to let their colleagues speak out against parts of the surveillance bill and then shuttle it to the President’s desk. Sound familiar?
Yes, it is the “Rage and Cave” strategy, which drove the party’s most prominent clashes with President Bush, from the Military Commissions Act to the Detainee Treatment Act to the August surveillance bill to judicial nominations to, well, most Iraq legislation.
In 2004, Democrats suffered for John Kerry’s claim that he voted for a bill before he voted against it. But Democratic candidates are headed for a similar vulnerability in 2008, having opposed the very bills their Congress rushed into law. All the Democratic presidential candidates opposed the six-month surveillance bill in August, for example. And they are all expected to oppose immunity for telecommunications companies that broke federal law.
In fact, the only distinction among the candidates on this issue boils down to leadership. Dodd is moving beyond rhetoric and floor votes and leading the fight by summoning the full power of his office. President Bush has governed by pushing executive power past its breaking point; it should be no surprise that one of his potential replacements is finally wielding the full constitutional power of a coequal branch of government. Democrats would be wise to back their Senate colleague in his battle to defend the rule of law, the Fourth Amendment and tough accountability for criminal misconduct. Or they could back down quietly and wait for the next outrage.