Party establishments oppose change but ferment grows as president meets lawmakers and libertarians sense their moment
The controversy over the National Security Agency's surveillance methods has turned some presumed political certainties on their head.
There are very few issues in Congress that unite Tea Party Republicans with the more left-wing Democrats. Conversely, establishment Republicans and Democrats, typically at each others' throats, have found a reason to cooperate in their opposition to any changes that they say would hinder the NSA in protecting America from terrorist attack.
The House speaker, John Boehner, and the Democratic minority leader, Nancy Pelosi, trenchant adversaries, both lobbied hard to defeat an amendment by the Republican Justin Amash that would have defunded the NSA's bulk collection, as did the bipartisan leadership of the intelligence committee.
There is, however, also some evidence that the NSA controversy has revealed how a security consensus that has remained in place since 9/11 is beginning to erode. In a revealing exchange at the Senate judiciary committee on Wednesday, Sean Joyce, the deputy director of the FBI, invoked 9/11 when arguing for bulk phone records surveillance.
"We need to remember what happened in 9/11," he said. "Everyone in this room remembers where they were and what happened."
"Mr Joyce, you're stating the obvious there," interrupted the chairman, Democrat Patrick Leahy. "Be specific."
Amash, who at 33 is one of the youngest members of Congress, and who is spearheading part of the legislative push against the NSA, said there was a generational shift taking place. "There's a dynamic at work within the Republican Party that is pushing it in a more libertarian direction," he said. "If you look at members who were elected in the last two or three classes of Congress, you'll find a lot of support for my amendment."
He said the majority of Republicans who had been in the House for five years or less supported his amendment. It also received the support of a majority of Democrats in the House – a significant act of defiance by Barack Obama's own party.
One factor that may partly explain the strength of the rebellion is the feeling among many lawmakers that the true scope of NSA surveillance has been kept from them by intelligence officials. Chief among those accused of being economical with the truth is James Clapper, the director of national intelligence, who was forced to apologize for telling congress the US did not "wittingly" collect data on millions of Americans. Edward Snowden's leak of a court order forcing Verizon to hand over millions of phone records proved that was not true. A number of legislators confide that trust has broken down.
While the White House has yet to endorse any reforms – it fought Amash – it has in recent weeks begun to concede that some reform may be inevitable, as its allies seek to head off the broader reform efforts.
Last week, the administration began declassifying surveillance documents in response to legislative frustration with their secrecy, and officials testified to the Senate they were open to changing the structure of the programs, like letting the phone companies and not the NSA maintain phone-records databases. President Obama has asked senior intelligence officials to find ways to make them "as transparent as possible". On Thursday, he met key legislators to discuss surveillance.
The bipartisan leaders of the Senate and House intelligence committees left that meeting reiterating their support for the NSA programs, but conceding that they would work through the summer to include greater privacy protections around them.
"The president said, and I accept what he said, that he was open to suggestions," said the Oregon senator Ron Wyden, who was at the meeting. "And I smiled and said, 'You all are going to get a number of them from me."
Reformers recognize they will not easily constrain the NSA, the authority of which has only grown since 9/11. One problem for them is Snowden himself. There is virtually no sympathy for him on Capitol Hill, as evidenced by the furious legislative reaction to his seeking and gaining asylum in Russia. But the scale of legislation being drafted in Washington suggests that disdain for Snowden has not translated into disregard for the secrets he has made public.
"I think the American people are capable of separating the illegal, completely intolerable actions of a lawbreaker like Snowden from the legitimate concerns that are expressed about protecting individual rights," said senator Richard Blumenthal, from Connecticut.
A key factor will be the summer recess, when members of Congress pass time with voters. On Friday, legislators were preparing to leave Washington for a month.
Wyden said he was surprised at how his Oregon constituents were talking about obscure surveillance issues in barber shops, a phenomena he expects to be repeated elsewhere.
"I think the summer recess will help us rather than hurt us, because the reality is there are few issues imaginable more important than security and liberty," he said. "This is as important as it gets. I think we're going to pick up support in the summer."
