Feingold questions Obama on warrantless wiretapping

Senator Russ Feingold is holding President Barack
Obama to campaign promises to end wireless
wiretapping. (Photo: U.S. Senate)

On the campaign trail, Barack Obama harshly criticized Bush administration policies allowing warrantless wiretaps. But, since he assumed office as president, Obama's Justice Department has attempted to deny a private organization the right to sue the federal government for wiretapping communications without court authorization. Now one United States senator -- the closest thing that body has to a consistent civil libertarian -- wants to know which Obama is the real Obama, and what wiretapping policies the administration will pursue.

In a letter (PDF) dated June 15, 2009, Senator Russ Feingold of Wisconsin wrote to the White House, saying, in part:

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.

Sen. Feingold's letter comes after the Obama administration actually went beyond Bush administration arguments in its legal efforts to head off a lawsuit by the Electronic Frontier Foundation over allegations of widespread illegal surveillance of Americans' phone calls and other communication. The government claims that the merits of the case don't matter, because the government's conduct is beyond the reach of the courts.

The current administration's stance isn't simply a continuation of its predecessor's case, but actually a toughened stance. As Tim Jones, EFF's Activism and Technology Manager, points out:

The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

The Obama administration's pro-secrecy -- and implicitly pro-warrantless-wiretapping -- stance has disappointed people who remember his campaign-trail criticisms of the last president's "wiretaps without warrants." After eight years of a growing security state, Obama was widely hoped to be the champion of badly eroded civil liberties.

Then again, even while the campaign was underway, Barack Obama flip-flopped and supported legislation authorizing free-wheeling surveillance. Ultimately, he supported not just the FISA bill, authorizing such wiretaps, but also voted to reauthorize the PATRIOT Act.

Feingold's letter, then, seeks to hold President Obama to civil liberties promises he made early in his campaign, but which he may have thoroughly discarded even before he won the election.

email J.D.: civilliberties (at) tuccille.com