WASHINGTON – Americans who say civil liberties have been marginalized or are even under attack during the Republican-dominated, post-Sept. 11 era have some newly empowered champions for their cause now that Democrats are taking over Congress next year.
Democrats taking the majorities in the House and Senate will be in charge of the legislative committees, including the Senate Judiciary Committee, which has oversight of the Department of Justice, home to the FBI, and other agencies responsible for enforcing civil rights.
"This election was an intervention," said Sen. Patrick Leahy, D-Vt., the next Judiciary Committee chairman.
Editor's Note: This is the second in a multi-part series on legislative and ethics priorities for Democrats when they take over the congressional majority in January 2007.
Under Leahy's seniority, the panel plans to consider, among other issues, ways to put a leash on President Bush's warrantless surveillance program at the National Security Agency, which critics say invades the privacy of innocent individuals in the U.S. who merely want to communicate with family and friends abroad.
"Security and liberty are not mutually exclusive values in America," Leahy said. "We should have both, and we can have both with adequate checks and balances and with the extra effort it takes to chart the right course."
He said he will consider creating a bipartisan judicial nominating commission to screen the worthiness of judicial candidates, wants to reintroduce a bill on data privacy to prevent the government and companies from rifling through personal information and plans to create a new subcommittee on human rights to investigate charges that the military has snooped on peaceful protesters.
Leahy said Wednesday one such complaint came from a group of Quakers who had protested the Iraq war, and were shocked to find out they'd apparently been spied on by the federal government.
"For God's sake, Quakers always protest wars, that's what they do," he said.
Civil liberties advocates are hoping that with liberal lawmakers like Leahy now at the helm of key committees, their efforts will be more than just talk.
Democrats "have said they want to do the investigations, they want to have the oversight — that in of itself is a giant step forward from where we have been," said Caroline Fredrickson, Washington, D.C., legislative director for the American Civil Liberties Union.
Frederickson said her organization is looking for key legislative changes in the 110th Congress to deal with NSA surveillance, alleged CIA renditions of "enemy combatants" to countries that torture, restored habeas corpus rights to detainees at Guantanamo Bay and better oversight of Patriot Act provisions affecting individual rights in the United States.
But others say they are skeptical Democrats will actually take action on any of those issues, even if the rhetoric suggests otherwise.
"It might be easier to oppose surveillance, tracking financial transactions and phone calls, rhetorically, when you know you are going to lose, but it's harder to take that same position in the majority, said Mike Franc, congressional expert for the conservative think tank, the Heritage Foundation.
"When there are more terrorist events, God forbid, the fingerprints will be clear as to who is responsible. There is some sobriety that comes with controlling the agenda that might temper those instincts," Franc said.
"Politicians follow polls so I don't think the Democrats are going to run out and start doing anything really public because they aren't going to be called soft on terrorism," said Ivan Eland, a civil liberties expert at the Independent Institute in Washington, D.C., a nonprofit group that tries to strip policy issues of political influence. Eland added that the Democrats' instincts are correct, but politics is often the enemy of good intentions.
Former Republican Rep. Bob Barr, R-Ga., once a federal prosecutor, said anything is better than the last five years. Barr helped get the House version of the Patriot Act passed in the weeks following the Sept. 11 terror attacks, but he pressed for expiration dates on the more controversial law enforcement and surveillance measures so lawmakers could revisit them from a less emotionally charged distance.
Barr said he laments that concerns over constitutional rights for individuals weren't taken more seriously when those sunset provisions were renewed by Congress last year.
"The last few Congresses have done nothing to protect civil liberties and have essentially paid lip service to civil liberties issues only when they feel they absolutely have to," Barr said.
NSA Surveillance Under Scrutiny
The first test of the new majority will likely be in the Senate, where members are expected to act on legislation regarding the NSA program. First made public by The New York Times in December 2005, details of the spy agency's terrorist surveillance program are still vague, but the White House has acknowledged that monitors are eavesdropping without warrants on people in the United States who are talking to individuals abroad with suspected terror ties.
"Even those of us on the intelligence committee have many unanswered questions about the NSA program," said Sen. Russell Feingold, D-Wis., a member of the Judiciary Committee and an ardent critic of the program. "It is time to get some answers."
The administration has repeatedly defended the program as a critical tool to prevent terror from reaching U.S. shores. But in response to an outcry from Democrats and a few Republicans like former Senate Judiciary Committee Chairman Arlen Specter, R-Pa., the federal government tried to quell the controversy by broadening its intelligence activities briefings to lawmakers beyond the House and Senate intelligence panels.
Democrats said that effort is not enough and they need to investigate NSA activities in the realm of domestic surveillance since the 2001 attacks.
"We must insist on full access," said Sen. John "Jay" Rockefeller, who will become chairman of the Permanent Select Committee on Intelligence when the 110th Congress convenes in January. He said he also wants to investigate reports that the CIA has been spiriting terror suspects to foreign countries that torture — claims the White House has denied.
"Only then can we conduct thorough oversight of these programs and determine whether they are legal, appropriate, and effective and what, if any, legislative action much be taken," Rockefeller, D-W.Va., said.
The House passed a bill this fall that would bring the spy program under the auspices of the Foreign Intelligence Surveillance Act court, the secret court which would issue warrants for surveillance when American targets are involved. The legislation did not require the government to ask for such warrants.
The Senate did not taken action on that bill. With the 109th Congress adjourned, that and other competing bills to bring more oversight to the program will have to be reintroduced next year.
Some of the proposals that could come back up for consideration range from whether the program would be brought under FISA review to whether the administration should be required to get warrants at all to wiretap Americans.
Democrats in the House say they want to revisit the issues in the new Congress. The program is being challenged in federal court and the Department of Justice recently opened an inquiry into how the NSA has used the information it gathered under the program.
Civil Liberties Oversight Board
In response to a recommendation by the Sept. 11 commission and growing pressure about the impact of the War on Terror on civil liberties, the Privacy and Civil Liberties Oversight Board was appointed by the White House in 2004. It didn't meet formally until early 2006.
The board recently said it has met privately 17 times and was briefed by the NSA in late November. It also held its first public hearing in Washington this month.
But some Democrats say that now they are in control in Congress, they want to give some real teeth to the board, which is made up of an equal number of Democrats and Republicans.
"Certainly, there will be a better opportunity in the new Congress to help bring the civil liberties board more in line with what the 9/11 commission recommended," said Rep. Carolyn Maloney, D-N.Y, a member of the House Government Reform Committee. Maloney said the current board "doesn't have the power or independence to examine the protection of our civil liberties in an effective or timely fashion. They basically operate at the whim of the White House."
Board member Lanny Davis, a former Clinton White House attorney, is for that kind of legislation, but he said he was impressed with the safeguards detailed by the NSA in late November.
"If the American public, especially civil libertarians like myself, could be more informed about how careful the government is to protect our privacy while still protecting us from attacks we'd be more reassured," he said.
The Associated Press contributed to this report.