The Politics of Eavesdropping

A White House campaign to win quick passage of a major surveillance bill has hit a new snag in recent days: four Democratic presidential candidates have signaled their intention to oppose the measure as it is currently written.

Sen. Chris Dodd of Connecticut took the lead last week when he vowed to filibuster a version of the bill overwhelmingly approved by the Senate Intelligence Committee. The bill gives retroactive immunity from lawsuits to major telecommunications companies that cooperated with the Bush administration's warrantless surveillance program after 9/11. In a statement blasting the program as "unconscionable," Dodd said he would "do everything in my power to stop Congress from shielding this president's agenda of secrecy, deception, and blatant unlawfulness."

No sooner had Dodd issued his statement than MoveOn.org—along with leading liberal bloggers such as DailyKos—launched their own campaign to pressure other Democratic presidential candidates to commit to the same position. In mass e-mails, MoveOn urged its supporters to call other Democratic senators running for president and encourage them to back a filibuster of the bill. Dodd's campaign reported $200,000 in new donations in the first 36 hours after he issued his filibuster threat.

By Wednesday, at least two other candidates—Sens. Barack Obama and Joe Biden--had joined with Dodd in pledging to oppose any surveillance bill that includes immunity for the telecoms. Sen. Hillary Clinton, the Democratic front runner, released a more equivocal statement, saying she was "troubled by the concerns" raised about the bill and pledging to "study it very hard." The statement continued: "As matters stand now, I could not support it and I would support a filibuster absent additional information coming forward that would convince me differently."

MoveOn claimed credit for the presidential candidates' opposition to the bill. "This is a great example of progressive voters demanding boldness and principle from Democratic candidates and Democrats responding by being bold," said spokesman Adam Green. But the maneuvering by the contenders—and the role played by MoveOn—also raised concerns among senior Democrats on Capitol Hill that presidential politics might impede efforts to reach a compromise on such a sensitive and important national-security measure. "We need to get things done on this bill," Senate Majority Leader Harry Reid told reporters Tuesday.

The principle thrust of the bill is to update and extend the Protect America Act--passed by Congress and signed into law last summer by President Bush—which granted new authorities to the U.S. intelligence community. The law was intended to close what the administration called an "intelligence gap" due to changes in technology. It allowed U.S. intelligence to intercept the phone calls and e-mails of suspected terrorists overseas that passed through switches or telecom equipment inside the United States. Critics accused the White House of stampeding the bill through Congress and said it gave the intelligence agencies too much power.

The new Senate bill would require electronic eavesdropping procedures to be approved by the secret Foreign Intelligence Surveillance Act court. That was enough to win the measure the support of all but two Democrats on the Intelligence Committee. But the key stumbling block as the bill moves forward is its provision that provides blanket immunity from lawsuits for telecommunications companies that cooperated with the surveillance program in the past and turned over personal data on customers to the National Security Agency without a court order. If signed into law, the bill would effectively derail more than 40 lawsuits filed against major telecom companies, such as AT&T and Verizon, for allegedly violating their customers' privacy.

Even though the bill has passed the Senate Intelligence Committee, House leaders and other powerful senators have balked at the immunity provision. Senate Judiciary Committee chairman Patrick Leahy—whose panel must also approve the measure--first wants the White House to let his committee see key documents, including Justice Department legal opinions relating to the surveillance program. (So far, the White House has only allowed the Senate Intelligence Committee to view the documents, after the panel made clear it was sympathetic to the telecom companies' pleas.)

As Democrats squabble, the administration and top Republicans are moving to exploit the issue. They accuse Democrats of sacrificing national security for short-term political gain. "Al Qaeda is not going to give us a break just because we're having an election," said Rep. Pete Hoekstra, the ranking Republican on the House Intelligence Committee, who demanded last week that Dodd donate to charity any campaign money he raised as a result of his filibuster threat.

The White House also attacked Democrats for political maneuvering and reiterated its call for protection for the telecommunication companies. "This issue is too important to play politics with," White House spokesman Tony Fratto told NEWSWEEK. "Private firms that answered their nation's call for help in the days after the 9/11 attacks should be applauded and not used as campaign props."

But Dodd, in a telephone interview Wednesday between campaign stops, rejected the idea that he was being driven by politics on the issue—even as he took a veiled swipe at Senator Clinton for her failure to stake out a more aggressive position. "If you want to lead, and you're not willing to take a stand on something as fundamental as this, it raises questions in people's minds," Dodd said.

Dodd said his anti-telecom-immunity position has "provoked a firestorm" and is increasingly resonating with Democratic voters. (Or so he hopes; Dodd has been lagging in the polls). "There is an underlying disappointment—to use a mild word—with what people perceive to be a failure by the Democrats to understand the mandate from the last election," he said.