Feingold Watch

This post is an extention of a long-running discussion with 3XHAR regarding our junior Senator from Wisconsin. I heard Sen. Russ Feingold on AM 1310 Wednesday say that what the administration was doing (with the NSA wiretapping program) was illegal. I tried to capture the senator's exact words by recording the next two hours of newscasts, but the news rotated through different soundbites each half hour and did not repeat the 16:30 quote. Nevertheless, Feingold used the "I" word ("illegal", not "impeach"), and this cuts directly to my "Feingold: idealist or cynic" question.

3XHAR and I have talked about this for at least a decade: whether Feingold is quite simply a fiercely independent and principled policy wonk with whom I happen to disagree nearly all the time, or is this characterization a carefully-maintained façade put forth by a shrewd, calculating politico for media and public consumption? There is a natural instinct, of course, to be admiring of the former and suspicious of the latter. Off the top of my head, I can recall a handful of occasions that reignited this discussion. There was the 1996 partial-birth abortion debate in which Feingold appeared to excuse medical infanticide, and later went back to edit the Congressional Record in order to alter his comments. And there was the Clinton impeachment in 1999 when Feingold voted with Republicans against a motion to dismiss the trial (fueling a fanciful discussion as to whether he would later vote to convict). Finally, one would be remiss to not recall the McCain-Feingold campaign finance "reform," which contributed greatly to the senator's name recognition but in no way reduced the flow of money through federal politics.

Regarding the NSA flap and Feingold's outspoken criticisms, my main point is this: Russ Feingold is no dummy (Rhodes Scholar) and is no stranger to the principles and application of U.S. law (Harvard JD). Yet it is acutely obvious to even non-lawyers who take a half hour to familiarize themselves with the topic that (1) the executive branch, with about 140 years of precedent on its side, has both the constitutional responsibility and the power to safeguard the nation against foreign attack, (2) the United States judiciary themselves (see endnotes below) have stated over and over that this is not their bailiwick, and (3) Congress declared that "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism" (see War Powers Resolution,1973 and Joint Resolution, 14-Sep-2001). That sounds like a hat trick across the branches as to where the power resides. Thinking otherwise invites conflation of national-security issues with law-enforcement.

Consider some of the natural implications of Feingold's allegations. Members of Congress (a few, not all) were repeatedly briefed about the ongoing NSA program. A majority of these Congressmen are lawyers themselves. Feingold is implying that Nancy Pelosi, Jay Rockefeller, et. al. were for years aware of an illegal program, and acquiesced to it. Next implication: No serious figure disputes that the President has the authority to launch a Hellfire missile at Muhammed in Yemen; however, Feingold suggests that if Muhammed were to pick up the phone to talk to some Fariq in Ann Arbor, it would be illegal for our government to listen. I say: show me chapter and verse where that is written. Show me where Woodrow Wilson, FDR, Eisenhower and LBJ had to go to court to ask for permission to spy on a foreign power and their agents. Feingold can't. That's why he is hurling accusations instead of facts, and that's why I say he is acting out of naked opportunism.

Furthermore, when the Clinton administration asserted in 1994 that:

"[T]he Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes." [Emphasis added]

one might think that Feingold -- the stalwart defender of civil liberties, the maverick lone dissenter from the Patriot Act -- would have stepped up to oppose that supposed "power grab" which was considerably greater in scope than the one he now says is so upsetting. I know of no such kerfuffle.


--- endnotes ---

(i) 1972 U.S. Supreme Court "Keith" decision: The Court declared that the Fourth Amendment's presumptive requirement of a judicial warrant applies to wiretaps in terrorism investigations involving purely domestic groups. The Supreme Court noted however that it in no way was defining or restricting the "scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

(ii) Katz vs. United States, 1967, Justice Byron White: a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."

(iii) When things get down to the nitty gritty, some will try to argue that it is the administration's bypassing of the secret FISA court that makes the NSA program illegal. This assertion is paper thin, mainly for Constitutional reasons. FISA was an invention of Congress (1978) and legally speaking, the Constitution trumps statute. In other words, a law cannot remove a constitutionally-granted power. Going further, a judge (even a FISA judge) has no national-security responsibilities whatsoever. None. The administration, which has the responsibility, thus chose in this instance to bypass Congress' creation but notified Congress that they were doing so, a nicety that was probably unnecessary and now appears downright unwise in hindsight.

(iv) Foreign Intelligence Surveillance Court of Review (2002): "[The U.S. vs. Truong] court, as did all the other courts to have decided the issue, held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. [...] We take for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."