Feingold calls the government's warrentless wiretapping 'a clear violation of the law and an unforgivable attempt to increase executive power.'
U.S. Sen. Russ Feingold (D-Wisconsin) is once again trying to thwart the Bush administration, which wants retroactive immunity for telephone companies that cooperated with the National Security Agency's warrantless wiretapping program.
Currently, about 40 lawsuits are pending against telecoms for helping the government spy on U.S. citizens. The provision, part of a bill to overhaul the Foreign Intelligence Surveillance Act, would absolve the telecoms of any civil or criminal wrongdoing.
The act, passed in 1978 in response the domestic spying activities of the Nixon administration, regulates covert government eavesdropping programs. It has been amended numerous times since Sept. 11, 2001, with a complete overhaul proposed earlier this year.
The Senate Intelligence Committee approved the overhaul last month, moving it onto the Senate Judiciary Committee, where it is currently being debated. Feingold, a member of both the intelligence and judiciary committees, says retroactive immunity would strip secret wiretapping programs of any judicial oversight.
Last week, he introduced an amendment to strike retroactive immunity from the bill. Current law, he says, already provides protections for companies that act in good faith so long as the requests meet statutory requirements.
Feingold chatted with The Daily Page this week about why retroactive immunity is dangerous and the precedent it would set.
The Daily Page: Why is retroactive immunity dangerous and are there instances where it can be useful?
Feingold: It's theoretically possible that something like that can be useful in some context, but [here the] laws were set up specifically to say, 'If you're going to do something at the request of the government, the government has to take certain steps under the law and if the government doesn't do that then you should not do what the government asks.' Otherwise, there is no reason for the law in the first place. What retroactive immunity does is say, 'Well, just kidding, you didn't have to follow the law in the first place.'
It's a very dangerous precedent in general, and an especially dangerous precedent for the privacy rights of all Americans.
But don't companies that cooperate with the government in the war on terror deserve legal protection?
They have to follow the law to benefit from legal protections. It doesn't make sense to set up procedures by which a company is allowed to do things that invade the privacy of Americans unless there are very clear requirements met. And unless those requirements are met, we are endangering the privacy rights of every single American, because companies will feel that anytime they want to cooperate with the government they don't have to worry, because whatever they do, whether it's illegal or not, will be forgiven. And that's dangerous, especially when you consider this controversy deals with a wiretapping program that I believe is illegal at its core.
Why hasn't the Bush administration's disregard for the law sparked a louder outcry from Congress or the citizenry?
There has been some outcry. Certainly, some members of Congress are really outraged by this. ...But there's an awful lot of people in Washington, including too many Democrats, who are afraid to stand up on an issue like this for fear they'll be accused of not protecting the American people.
That is a false accusation, but it is effective at intimidating many people to either vote wrong or be way too quiet about clear violations of the statutes or Constitution. The laws are adequate to allow surveillance and other actions against real or potential terrorists.
What precedent would be set with regard to warrantless wiretapping, which this act would make retroactively legal?
I'm very worried that if this kind of immunity is granted, it would [be] very difficult for the courts to rule on [whether] the president's warrantless wiretapping program was a violation of the statutes and possibly the Constitution. So, in addition to the bad precedent it would set, it could block our ability to finally get a decision by the federal courts and the Supreme Court to prevent future presidents from defying the clear statutes passed by Congress and signed by previous presidents.
What, in your opinion, what has been the Bush administration's most egregious abuse of power?
It's hard to choose. But I think that it is very clear that this warrantless wiretapping program -- this so-called terrorist surveillance program, as it used to be called -- which was created with the full knowledge it went against the Foreign Intelligence Surveillance Act, was a clear violation of the law and an unforgivable attempt to increase executive power.
Of course, they're doing a lot of other things, from the way they're trying to set up military commissions, to their attitudes about torture, to their attitudes about signing statements. There are many areas where this White House has taken a very extreme and inappropriate view of the president's powers in a way that would essentially make Congress' powers meaningless.
Will we ever be able to fully reverse what Bush has done?
It will take time; it can be done. It will require a bolder Congress, a new president who is willing to repair the damage, some repairing by the current Attorney General and the future Attorney General, and especially rulings by the courts [to] make it clear that a number of these activities were wrong and outside of the Constitution.
The combination of all of that over the next few years can make it clear that this was a very dark chapter in the history of our Constitution and this administration was as lawless an administration as any one in the history of our nation.