Russ Feingold Throws Vaughn Walker a Softball

With this letter:

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping.  As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal.  Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

It is my hope that you will formally confirm this position as president, which is why I sent you a letter on April 29, 2009, urging your administration to withdraw the unclassified and highly flawed January 19, 2006, Department of Justice Legal Authorities Supporting the Activities of the National Security Agency Described by the President (“NSA Legal Authorities White Paper”), as well as to withdraw and declassify any other memoranda providing legal justifications for the program.  Particularly in light of two recent events, I am concerned that failure to take these steps may be construed by those who work for you as an indication that these justifications were and remain valid. 

On June 8, Director of National Intelligence Blair asserted in a speech and in response to a question from a reporter that the warrantless wiretapping program “wasn’t illegal.” His office subsequently clarified that he did not intend to make a legal judgment and that he had meant to convey only that the program was authorized by the president and the Department of Justice.  Nonetheless, Director Blair’s remarks – which directly contravene your earlier position, as well as the position of Attorney General Holder – risk conveying to the Intelligence Community, whose job it is to explore legally available surveillance options, that not complying with the Foreign Intelligence Surveillance Act may be such an option.  Moreover, his “clarification” highlights the need to formally renounce the legal justification that the “White Paper” provides. 

In addition, I asked your nominee to be General Counsel for the Director of National Intelligence, whether, based on the “White Paper” and other public sources, he believed that the warrantless wiretapping program was legal.  His written response to my question, which was presumably vetted by your administration, indicated that, because the program was classified, he could not offer an opinion.  Should he be confirmed, this position, too, risks conveying to the Intelligence Community that there may be classified justifications for not complying with FISA.  As a member of the Senate Intelligence Committee who has seen all of the legal justifications, classified and unclassified, that were offered in defense of the warrantless wiretapping program, I strongly disagree with this implication. 

As president, you have spoken clearly on the importance of the rule of law and have taken action in a number of areas, such as torture, that have reassured the American people and provided much-needed clarity to the Intelligence Community and the rest of the executive branch.  For these reasons, I strongly urge you to formally renounce the legal arguments behind the previous administration’s warrantless wiretapping and to demonstrate again your clear commitment to the rule of law in this area.

Thank you for considering my views on this important matter.


Russell D. Feingold

Mind you, I expect Obama and friends to deep six this request and go on letting people pretend the program was legal, at least until Judge Walker has cleared his docket of anything remotely resembling a warrantless wiretapping case. But this does focus attention on the rank hypocrisy of Eric Holder’s DOJ as the al-Haramain and other wiretapping cases move forward. 

Update: One reason this is so interesting is because al-Haramain’s lawyer, Jon Eisenberg, suggested he was going to use the January 2006 White Paper in question to show that the warrantless wiretap program was illegal (he got the year wrong, but meant the White Paper).

MR. EISENBERG:  Now, will our motion for summary judgment look just like what we filed previously, as Mr. Coppolino mentioned? The answer to that is most certainly no. We’ll be arguing liability and specifically issues including the legality of the warrantless surveillance program, the president’s power or not to disregard an act of Congress in the name of National Security. We will be arguing the merits of this case.

Mr. Coppolino says, well, that’s going to require a consideration of classified information, and my response to that is, it didn’t require a consideration of classified evidence when the Government presented its case to the public in a 42-page white paper in January of 2007. There is no — it is a purely legal issue we are looking to litigate.

This Court needs no further classified evidence to decide the purely legal issue whether the president has the expansive power that President Bush and now President Obama are claiming.

As I said, I fully expect Obama to ignore this (actually withdrawing the White Paper might well sink the government’s case in al-Haramain). But this letter really focuses on the hypocrisy and inconsistency here. 

31 replies
  1. FromCt says:

    If, after all you have blogged and analyzed about Obama’s “meet the new boss, same as the old boss”, official actions and intentional policies, you do not agree that it is at least time to vehemently demand initiation of an impeachment investigation of Obama, starting modestly with the crime of obstruction of justice, what would it take, as far as additional provocation from Obama, for you to post something along those lines, EW?

    Isn’t it ironic that Obama is acting in so many ways as the best of all possible “opposition party” presidents, the extreme right could hope, yet they label him as extremely “liberal and leftist”? Isn’t it possible that Obama’s critics on the extreme right make his unlawful actions to preserve the status quo seem more reasonable and lawful, even to you, EW, than you know by now that they are?

  2. oldoilfieldhand says:

    Thanks Marcy! Thank you Senator Feingold! Little warm there with your feet to the fire Mr. President?

  3. joanneleon says:

    I admire Sen. Feingold for writing this letter, and I’m really glad that someone is saying these things. But with all due respect to Feingold, do these letters that he writes ever change anything? If, as Marcy thinks will happen, Obama and Holder simply ignore this until every last plaintiff is thwarted, what is the logical next step for Feingold? Is there something else he should do after a few weeks of no response? Has he, in the past, taken that next step?

    How incredibly frustrating. Frustrating beyond belief. I still haven’t been able to get my mind around these situations where Obama railed against practices that he is now continuing to do in his own presidency. I’m still stunned. Sometimes I wish I was one of the true believers who are convinced that this is all part of the eleven dimensional chess.

    You know, when Bush was in office, it was maddening and frustrating, but at least we could hang in there knowing that we’d be able to elect a new president who would set things straight. Now what do we do?

      • joanneleon says:

        Yeah, well, that does seem like a good idea for people who can do it. Unfortunately, I’m not one of them. I suppose I should start meditating regularly again.

  4. Stephen says:

    The American People are wore out. They have this deep down uneasy feeling Obama is not the Great Fixer he billed himself as. Bill Maher did a wonderful piece on this very subject. It is up for viewing on the Huffington post. Healthcare will be Obama’s undoing because the People need a break after all these years of deceit and malfeasance. If he can’t get universal healthcare up and running but only adopts Bush’s attitude toward justice and war, what has he accomplished? The masses are politely waiting.

  5. tanbark says:

    Excellent thread! I didn’t expect him to be the Great Fixer. Bush, the Repubs, with some help from the yellow-dog war-dems fucked things up so badly that no one is going to be great at “fixing” all of them. But dragging us back from the Orwellian precipice is something that Obama and his people owe us, and no pissing around, about it.

  6. MadDog says:

    EW, totally OT and kinda breaking, but the ACLU has those CSRT documents released by the CIA up now. The ACLU’s press release is here:

    …The newly unredacted information includes statements from the CSRTs of former CIA detainees, including Khalid Sheikh Muhammad, Abd Al Rahim Hussein Mohammed Al Nashiri, Abu Zubaydah and Majid Khan, including descriptions of torture and coercion…

    And the still highly-redacted CSRT documents are here.

      • MadDog says:

        It appears that Majid Khan was able to retain a sense of humor at his CSRT (50 page PDF):

        …President: This hearing will come to order. You may be seated. Good morning.

        Detainee: Good morning. How are you guys doing?…


        …President: Very well. This is an administrative process and we will continue through it, and if you have any questions about what we are doing at any time, please feel free to ask.

        Detainee: The same goes for you too.

        President: Certainly…

          • emptywheel says:

            Not much there. They’re letting Abu Zubaydah reveal that we finally agreed that he was not the number 3 guy in Al Qaeda.

            And we know that we shaved Majid Khan’s beard forcibly.

            But that’s about it. Pretty bogus, IMO–particularly since hte ICRC report is out there.

  7. jimhicks3 says:

    Somehow we need to have in the WH press corp a group that will harp on these questions day after day. Till maybe they get thrown out. & it becomes an issue in the press. No wonder the newspapers are going down the tubes – they are mostly useless. I mean, I follow Marcy cuz that’s where I can get the dope on this very important subject. There isn’t any other place (the blogs in general but ew in particular) and the incredible comments that follow.
    I was reading this moron in the nyt a while back blathering on about how much shit some blogger got for their work & wrote back that she didn’t know anything about the alt blogs – or are these considered main stream blogs.
    Now I’m really confused

    • rapt says:

      I had seen a lot of that footage before it was edited into a convincing argument, and without the part where they nailed the cabbie with his contradictions.

      I expected at first that it would be shown that “the plane” had fired a missile before banking around the Pentagon, but nope not this time. Still possible IMO; still no explanation for where the missile – or whatever it was – came from.

      Sorry ,, back onto the topic now.

  8. emptywheel says:

    Oh, and wrt the discussion of Nashiri (whether he had a tracheatomy)–no sign of that which, given the redactions, is not definitive. BUt he did say ihs nerves are all swollen and that he used to be able to run 10 KM and now can’t walk more than 10 minutes.

  9. emptywheel says:


    I’ve read all but Khan’s quite recently (and I read some of Khan’s today). So I was just looking at the new bits.

    The most chilling for me, still is the bit in Nashiri’s where he talks about his torturers laughing as he gave them precisely what they wanted to hear, in that case, the claim that AQ had nukes.

    • MadDog says:

      …The most chilling for me, still is the bit in Nashiri’s where he talks about his torturers laughing as he gave them precisely what they wanted to hear, in that case, the claim that AQ had nukes.

      Jiminy crickets! I’m still not quite done with Majid Khan’s transcript, but when I am, I’ll jump over to Nashiri’s next.

      AQ had nukes, and this made the torturers laugh. Jiminy crickets that’s abominable.

      • emptywheel says:

        Hard to tell for sure without more context, but that’s what it seems like to me. Almost a mutual understanding–which the torturers find funny–that this ia a big game, they torture, detainee makes shit up, they stop for now.

  10. freepatriot says:

    what do we do if the “soft ball” works ???

    do we despair for all the times we resorted to a “sternly worded letter” ???

    Obama totally disrupted and confused Iran, just by talking to them

    maybe that “honey instead of vinegar” thingy is true

    I might just have to check that “Honey” stuff out

    not that I need any help persuading people, or anything …

  11. FromCt says:

    Responses so far remind my of Pelosi’s circa 2008- “Impeachment is off the table..”

    Why not even considerate it, since it seems he’s already blatantly broken the law; he is the nation’s chief law enforcement officer, and the AG is supposed to be independent of the executive, and the president is intently complicit in obstruction and continuing Bush’s unlawful “policies”?

    From Glenn’s latest:

    UPDATE: The Daily Beast’s Scott Horton interviews Jane Mayer about her article, in which Mayer elaborates on several points, including: (1) Panetta originally favored a Truth Commission but backed down when it became clear that Obama (backed by political adviser David Axelrod) opposed any investigations into Bush crimes; and (2) John Brennan — as his opponents continuously maintained — “wasn’t just neutral, he was a supporter of using coercive interrogation techniques. He drew the line, according to his friends, at waterboarding prisoners, which they say he opposed. But otherwise he supported many of the coercive approaches that Obama has banned.”

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