Here’s a good test of whether we’ll see any real improvement on the transparency front: A bipartisan group of senators has introduced a bill that would declassify key legal opinions reached by the Foreign Intelligence Surveillance Court that make the gathering of these records possible. Who in Congress will support it?
The bill is being introduced by senators Jeff Merkley, a progressive Democrat, and Mike Lee, a Tea Party Republican. It’s also supported by Dem senators Patrick Leahy, Ron Wyden, Jon Tester, Mark Begich, and Al Franken, and Republican Senator Dean Heller.
Does the measure stand any chance of success? Aides involved in the effort insist there are grounds for optimism, for a number of reasons. The last time this measure was introduced by Merkley, it got 37 votes; aides hope the new revelations will force more senators to take it seriously.
The prospect of Tea Party support could make it attractive to GOP Senate leader Mitch McConnell, who has sided with Tea Party Senators on a number of recent issues. The presence on the bill of Dem leader Leahy may make it more palatable to the Dem Senate leadership. Indeed, Dick Durbin “encourages” this effort (though he predicted the White House would oppose it). Senator Dianne Feinstein — the chair of the Intelligence Committee — signed a letter of support for the general idea of declassifying FISA opinions last time; if she were to endorse the current proposal, it would move the ball significantly. (A spokesman for Feinstein declined to immediately comment.)
The bill, which aides hope to introduce as an amendment to the coming reauthorization of the National Defense Authorization Act, could highlight a split among libertarian Republicans and defense hawk Republicans. While Tea Partyers such as Rand Paul can be expected to support it, it will likely be opposed by hawks such as John McCain, Lindsey Graham, and Kelly Ayotte. The proposal could also end up testing the boundaries and reach of the emerging alliance between the libertarian right and the civil libertarian left over these issues.
Keep in mind: This bill would not change any of the existing programs; it would only shed more light on the legal justification for them. Would such disclosure compromise national security? As Adam Serwer explains:
The Justice Department will retain significant leeway to prevent the disclosure of classified opinions even if the bill succeeds. Under the proposal, the attorney general can offer a declassified summary rather than an opinion if they believe declassifying an opinion would harm national security. The attorney general can block even a summary from being made public as long as the office can justify the decision to Congress.
So how many Senators will support this bill? The answer will tell us whether the new revelations are really prompting any kind of shift in opinion in Congress, or whether the Congressional consensus is holding behind the notion that secrecy should continue to shroud the legal rationale for the gathering of records on millions of Americans. Are we going to have that “debate,” or aren’t we?