June 13, 2009
The President
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500Dear Mr. President,
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.
Sincerely,
Russell D. Feingold
UNITED STATES SENATORCC: The Honorable Dennis C. Blair
Director of National IntelligenceThe Honorable Eric Holder
Attorney General
Good for Russ. It’s enough to make a person want to move to Wisconsin just to show him support.
The pressure needs to be kept on Obama – reminding him of his previous statements as Feingold does here and juxtaposing them with the statements of his administration is a good tactic.
Good for Feingold. I hope the letter has an effect and inspires his Dem colleagues to get a backbone implant. If not maybe the time will come to haul Holder before the Intelligence Committee to find out what changed his mind since the confirmation. If he can give no credible reasons, does perjury come into play?
According to Marcy Wheeler aka emptywheel:”Holder refuses to stand by statements saying that violating FISA breaks the law”. At the Judiciary Committee hearing today:
FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration’s warrantless wiretapping program. At the letter was prompted in part by a recent speech that I’m sure you’re aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.
In a speech to the American Constitutional Society in June 2008, you, sir, set the following. “I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens.”
And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?
HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as — as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard…
FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that’s certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.
HOLDER: Yes, well what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with the dictates of — of FISA, and I think I used the word “contravention,” and as a result I thought that the policy was an unwise one. And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.
FEINGOLD: But did you think it was illegal?
HOLDER: Well, I thought that, as I said, it was inconsistent with — with the FISA statute and unwise as a matter of policy.
FEINGOLD: Has something happened that’s changed your opinion since your June 2008 statement that would make it hard for you to just simply say what the president said, that it’s illegal?
HOLDER: No, I don’t think so. And I don’t think what I’m saying now is necessarily inconsistent with what I said at the — at the ACS convention or speech that I gave.
FEINGOLD: Well, it sounds awfully mild compared to some very clear statements and a very important principle here, which is not only that this has to do with the scope of the FISA law, but the underlying constitutional issue that people like mean and many people believe that is his statute is — is that explicit under the third test, under Justice Jackson’s test, that it is in fact unconstitutional for the president and illegal, of course, for the president to override the expressed will of — of the Congress.
HOLDER: Yes. Well, as I said, I think I said “contravention of,” “inconsistent with.” I’m not sure I’d use the term “illegal,” and I would adhere to — I’d adhere to what I said then. I think what I’m saying now is consistent with what I said in the — in the speech.
FEINGOLD: Well, that may well be, but I would hope that you would use the word “illegal” now, then. And I request in a letter I sent to the president on Monday and also in a letter dated April 29th, that the administration withdraw the January 2006 white paper and other classified OLC memos providing legal justification of the program. I know you have initiated a review of the Bush era OLC memos. And, of course, certain memos that authorize torture have been withdrawn. Apparently, you discussed this a bit already today with Senator Feinstein. What is — what is the status of your review of the memos concerning the warrantless wiretapping program?
HOLDER: Well, I asked the Office of Legal Counsel to review these prior opinions, including those that deal with surveillance, with the goal of making as many of these opinions public as we can, consistent with our national security interests and also consistent with ensuring that robust debate can happen within the executive branch. It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time.
FEINGOLD: I just want to reiterate how important it is for the legal justification for this program to be withdrawn concerning these memos that make unsupportable claims of executive power that will come back to haunt us if they remain in effect. And if you believe, as I — I think the president has indicated in the past, that the program was illegal, they — they cannot stand.
So we got another weasel as attorney general. The more things change….
The only stance for those who care about civil liberties and basic rights is to demand that Holder be fired or resign. There’s really no ground for anything less.
I like what you all have written here. I am slowly loosing my faith in Obama. I have been sent many requests to send in money to the democratic party in several ways, both houses of congress and to Obama. I refrain to do so until I see some grit at to doing what we elected them to do. I work too hard and need my $$$$ MORE THAN TO SEND THEM FOOLISHLY TO WASTE ON THINGS I do not agree with!
Until I see something that is being done that makes it worthwhile, I stand on my own convection of not supporting them. That is just how I feel about things.
I sure hope Senator Feingold gets his answers and it is the right ones.
Seems like Attorney General Holder has difficulty saying the word “illegal” regarding the warrant less wiretaps. Wonder what happened to change his mind? Could the President of change be changing his pre election position on this NSA surveillance situation? When Obama promised change, I didn’t realize that he meant several of his former positions. But, I keep forgetting in the Empire it’s what the Emperor wants that really counts.
Presidents always end up running scared from the “security” establishment. And with good reason.
Let the fail train keep on rolling. Nice job, Mr AG & Mr President.
From Russ’s pen to the Presidents desk…. and into the Presidential waste basket.