Letting the Government Listen In

With presidential campaigns dominating the attention of most politicos, a key fight in Congress is going practically unnoticed. The debate contains all the sex appeal of court jurisdiction, statutory language, and acronym upon acronym, so it's easy to understand how it's been crowded out of the headlines. But the fight focuses on an issue that's been at the heart of American politics since 9/11: the collision between the desire to fight terrorists and the principles of civil liberties and judicial review.

At issue is the proposed extension of the Protect America Act (PAA), passed six months ago, after the Bush administration was discovered to have been conducting warrantless wiretaps. At the time, the administration explained its behavior by claiming that provisions of an existing statute—the Foreign Intelligence Surveillance Act (FISA)—tied the government's hands when it needed to listen in to the domestic ends of conversations involving terrorists abroad. The Protect America Act updated the FISA statute, saying the government didn't need permission from the top-secret FISA court in order to track international communications that passed through the United States. Six months later opponents say the PAA is treading too heavily through the everyday communications of American citizens.

As the Senate prepares to debate a series of amendments to the PAA over the next two weeks, NEWSWEEK's Seth Colter Walls spoke to three-term Wisconsin Sen. Russ Feingold, a leading critic of the legislation. Excerpts:

Many Americans feel the PPA doesn't have an impact on them, since they don't make international phone calls or e-mails. And after 9/11 some people think it's reasonable to trade away some domestic civil liberty protections. How do you make the case that the PAA might actually affect them?
I really don't believe that most Americans regard international communications—when you consider both telephone calls and e-mails—to be something that doesn't relate to them. When I was a kid a simple long-distance phone call to a town 25 miles away meant everyone had to be quiet in the hallway; it was a big deal. Now it's a fundamental form of communication. Families with loved ones in Iraq would like privacy in their communications over there. Those with kids traveling in Europe, or studying abroad, or those who do business overseas all have an enormous interest in their own privacy. Whenever I present this to citizens, they understand the stakes and begin to consider it quite outrageous that those conversations are subject to government intrusion. When it's framed correctly, I think it shocks people when they realize the enormity of it. They think it only applies if you're talking to a terrorist. This is not that at all. This is about the bulk sucking-up of information by the government.

How has the debate overall come to be framed so incorrectly, as you suggest?
One reason is that there's been an inadequate response to the Bush-Cheney scare tactics. They've been successful every time—in the Iraq War, with the Patriot Act—[in saying] "If we're not given these powers immediately, we will be attacked." These are bogus claims. The problem is with many people, including Democrats, who fail to stand up and say, "We feel just as strongly as you do. And we don't want you invading our privacy without any court review."

Supporters of the PAA say that if these calls and e-mails were subject to the regular FISA court, it would take hundreds of lawyer and analyst hours to prepare them for the appropriate review.
Listen, a criticism like that just shows no understanding of what's going on here. Every time a foreign conversation runs through a transmitter in L.A., there was an archaic technicality in the law that would require individualized warrants [in order for the government to intercept them]. We all said, fine, we agree with changing that, but in cases when the program ends up impacting Americans, there has to be some oversight.

What's the status of your amendments? It's been suggested that in the consent agreement to allow debate, Republicans are allowing straight majority votes only on amendments they know will fail—including yours.
We're trying to make a record here, and to show who voted for what. My prediction is this thing will go through; it will be challenged and go through the courts. And eventually a Supreme Court with something like seven Republican-appointed judges will strike down the worst parts of it. This is a long-term battle to protect the rights of the American people.

In the modern political climate you're more likely to hear about amnesty with respect to undocumented workers than you are about the amnesty for the phone and Internet companies who helped the government break the law before the act was passed.
Oh, I think there's tremendous feeling that there's a problem here. In some ways I think it goes deeper than immigration. People see their own personal liberties affected. And we've seen that the telecom immunity does offend people. People may be nervous about giving a free pass [on immigration]. But what's gonna bother them even more are the types of things I'm describing here: the level to which their privacy is being subjected to a "trust me" government that impacts their daily freedom and privacy. It really is disturbing to people with any kind of common sense at all.