I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, February 26, 2012

Interview with Russ Feingold

Transcript of my 2/25/2012 interview with Russ Feingold, which can be heard here (transcribed courtesy of bmull)
GG: My guest today on the video version of Salon radio is the former Democratic senator from Wisconsin, now law professor and author, Russ Feingold. He just released a new book entitled While America Sleeps: A Wake-up Call for the Post-9/11 Era that recounts some fascinating events from his Senate career including his heroic and lonely vote against the Patriot Act in the wake of 9/11 and a variety of other controversies, and contains a lot of discussion of contemporary political issues as well. Thanks so much for joining me, great to talk to you.
RF: Very good Glenn. Glad to be on with you.
GG: Good, so let me just dive right into the book and ask you about a few of the passages I want to discuss. You have a section on civil liberties, which is obviously one of the areas that you’ve been most identified with, and the Democrats in the Obama era, and what you write is,
To whatever extent the Bush abuses aroused the American left, progressives, part of the Democratic party and, most interestingly, part of the conservative movement, Americans have metaphorically gone back to sleep when it comes to Constitutional intrusions in the name of fighting terrorism. Criticism of Obama’s failure to change much of this has been muted on the American left—embarrassingly so, given the powerful complaints that came from those quarters.
Which policies do you have in mind when you talk about the continuity of these policies and why do you say to the American left, “silence is embarrassing?”
RF: Well unfortunately there’s quite a range of things you can mention. Before the presidential election I held a hearing on the range of things the Bush administration had done to damage civil liberties. There are about 25 areas. And I indicated that I’d be giving a grade to the new president after the first few months. And as I say in the book, Obama got off to a good start on this, with regard to the first day, Guantanamo, saying it was going to be closed, saying no more torture.
But there was major backsliding after that and the areas include, regrettably, not changing that state secrets privilege usage. That is one of the worst things the administration does, so that people can’t litigate the law with regard to cases because they use a state secrets immunity. This is a serious problem. Also of course, Guantanamo, didn’t finish the job on that, to say the least. Accepted there were far too many fears, of the argument, that you somehow you can’t try people in a regular court, which is absurd. And now, most disturbingly, somehow the president signs a bill that has to do with indefinite detention, which to me is absurd and clearly unconstitutional. So that is obviously an area that concerns me as well. Not to mention the fact that the Patriot Act still has not been fixed. You don’t have a fix on the library and business records. You don’t have a fix on “sneak and peak” provisions. I don’t think the NSA, the national security letters, are adequately regulated.
I could go on and on, but there are many areas where the job hasn’t been done, although I’m a supporter, in fact a co-chair, of the President’s reelection campaign. I have been open in saying this is one of the three or four areas where I believe there’s a really serious problem with not fixing what happened in the Bush administration. And of course the failure to completely renounce the commander-in-chief claims that were made under George Bush, which were that somehow legislation could be overridden in the name of torture, or the name of warrantless wiretapping, which to me is something that this president should completely and clearly repudiate.
GG: Right. Now one of the interesting things about that list is that a lot of times defenders of the administration will say that certain failures that he’s had, where things that he hasn’t done that he said he would, is the fault of Congress for blocking him. And most of the things that you just identified are things that he’s actually done on his own without any interference from or reliance on Congress, such as the assertion of the state secrets privilege, and his signing of the indefinite detention bill.
But one area that does obviously involve Congress is Guantanamo and defenders of the President will say that, although he failed to close Guantanamo, that was because Congress prevented him from doing so, and they’ll even point to a vote that was 90-6 in the Senate where 90 senators, including you, voted against funds to close Guantanamo, and they’ll suggest that that’s because people were afraid to close it. My recollection is that the reason many senators such as yourself voted against it was because you wanted first to know what the plan was going to be, and didn’t want Guantanamo being essentially being re-imported onto American soil. But can you talk about your vote specifically not to fund the closing of Guantanamo, and the general argument that it wasn’t Obama’s fault but the fault of the Congress that it hasn’t been closed?
RF: No, I think it’s legitimate to blame Congress far more than the administration on a number of things. I mean, clearly Congress is much worse as a body on these civil liberties issues than even President Obama’s been, because of the lack of sensitivity to these issues. At least he seems to have a desire to close Guantanamo. Yes, the vote there had to do with the fact that we had no idea where people were heading with this. It struck me as more dangerous than any other alternative, especially given what they were talking about doing. There were some pretty bizarre notions, and what I’m very disturbed about is what comes out of this, is the President acceding to indefinite detention as some kind of a middle ground, to resolve this concern about sending people back to the countries they came from, that they would do terrorist attacks again. That was the rationale that was involved.
GG: Right. Now obviously a lot of what you said, like the assertion of state secrets, continuing to detain people indefinitely and the like, really are decisions on the part of the administration, and not acts of Congress. But one of the things that you said in the interviews in connection with the book, specifically a Huffington Post interview about your book was you said, “It’s one thing if the Bush actions with regard to civil liberties are sort of an outlier. It’s far more dangerous if they become reaffirmed under a progressive president like President Obama. It sort of gets cemented in.” What do you mean by that? Why is it more dangerous if these things are done by a progressive president such as Obama than by a conservative president like George Bush?
RF: This is about constitutional history. This is about the legacy of our Constitution. Everybody knows that there’s a huge difference between somebody doing something once, and then people acknowledging it shouldn’t have been done, and a great example of course would be Lincoln’s unconstitutional actions in lifting the writ of habeas corpus where he basically admitted that it was unconstitutional. That’s one thing. Korematsu, the detention of Japanese Americans, acknowledged generally to have been wrong and one of the worst acts in American history. Those things did not get cemented in, though on the other hand George Bush, who was the most reckless president, maybe of all time, with regard to civil liberties does this, it’s one thing.
If Barack Obama comes in and doesn’t clearly repudiate at least in words, in statements, those things then people can say Obama, a constitutional law professor, who co-sponsored most of Russ Feingold’s amendments in the Senate having to do with civil liberties, even he said it was okay, that’s when you start having the cementing of constitutional history. Now I just want to say on this point, yes, you could blame Congress for many things, but that does not excuse the White House from making a clear statement that it’s wrong, and that they believe that the Constitution and civil liberties require something else. In other words, sort of softening the stance and sort of dealing with it later by blaming Congress also has the effect of taking away the presidential imprimatur of saying this is wrong. That’s hard. I understand when he became president he was surrounded by military people, justice department lawyers, his own personal lawyer in the White House. Every single one of them was pushing him to have the broadest interpretation of executive power possible.
But you know what? A president has to resist that in order to keep the balance of our Constitution, and I support the President but I certainly hope that, almost more than any other area, this is one he starts reversing course on.
GG: Let me focus in on that a little bit, because one thing that always interested me about your leadership on this issues when you were in the Senate is that, unlike someone like Ted Kennedy who was in the very blue state of Massachusetts, or Pat Leahy in Vermont, or Dick Durbin in Illinois, or somebody like that, Wisconsin is actually kind of at best a very purple state. It votes for Republicans a lot on a statewide level. As we just saw in the 2010 election, as it did in presidential elections.
And yet you were taking the lead on these issues and I just wanted to specifically ask about things like your opposition to the Patriot Act which was a lone vote in the Senate, and more specifically about your opposition to allow the President to eavesdrop on Americans without judicial review, and your opposition to allowing him to detain people without judicial review. What were the principals that you believe are at stake here? What are the dangers of allowing the President to exercise powers like that in the dark and without oversight that made you prioritize those issues to the extent that you did?
RF: Well, I like to think that I always did things that I thought were best for Wisconsin, and for America in general. I certainly wasn’t right every time but that was my goal. And that’s truly why I went into politics. I enjoyed many other aspects of it, but fundamentally it interested me that I could be part of the trying to keep the legacy of this Constitution which I grew to respect as a kid, and then as a college student, as a law student. I developed that reverence for it that has so long—in fact I’m looking at the Supreme Court as we speak. It’s just a few yards from here. I grew up thinking that that was very special and very important. And when I became a U.S. senator one of the most important things you could possibly do is help protect the Constitution, and hopefully have the skills to explain that to your constituents. And 9/11 couldn’t have made it tougher.
That was the toughest thing because you have these terrorists coming in and blowing up buildings in our country, killing thousands of people, saying the worst things you can imagine. And that’s where of course the famous Justice Goldberg line comes into play, that the Constitution is not a suicide pact. As I write in While America Sleeps I remembered that phrase on 9/11, and I thought, I want to know what that case was about since I had forgotten from law school, embarrassingly. So it turns out of course it was a case where Goldberg says that, and then he says in that case the civil liberties position should prevail. He said specifically that the Founders understood that the Constitution and civil liberties apply with equal force in times of war as well as times of peace. I’ll tell you I found that moving.
I find that moving saying it right now. I believe it was my sacred responsibility having taken the oath to do everything I could to protect the Constitution and I was a little surprised I ended up becoming sort of the leading member of the Senate on this issue, because I thought there would be a lot more people that would see that as at the core of their work, but they didn’t.
GG: Well let me ask you about this, along those lines. One of the things that you said in connection with the release of your book was in an interview about the President’s targeted assassination or killing of the U.S. citizen, the cleric Anwar al-Awlaki. You seemed to indicate that you were supportive of that decision. You said, “I’m very pleased that he was taken out. I do believe he was part and parcel of al Qaeda. I do think it is legitimate to go after al Qaeda operatives.”
One of the things—and I just want to ask you this in connection with the principles that you talk about in your book—because one of the things that you talk a lot about in your book and that you continuously said when you were in the Senate, when for example you opposed the FISA Amendments Act, you said it’s terribly dangerous to allow the President simply to eavesdrop on American citizens without having to go to a court first because there’s no way to know who he’s accusing of being a terrorist without judicial checks. And when you spoke out against the Military Commissions Act you said the same thing: It’s outrageous. "The courts must have the power to review the legality of executive detention decisions," you said. Meaning that it’s just too dangerous and too unconstitutional to allow the President simply to eavesdrop on or detain American citizens without due process, without having to go to a court first.
And yet here’s President Obama asserting to target American citizens, not just for detention or eavesdropping, but for execution by the CIA, without any due process, in total secrecy, and with no judicial review of any kind. How can you reconcile your support for the assertion of that power with your opposition to the much tamer powers of detention and surveillance without due process?
RF: This would be the subject, not just of a law review article, but of a whole book, if I were to be completely able to answer this question. But let me give you the best I can. First thing I’ll say is, I have no hesitation saying I’m glad he was killed and I’m glad he’s gone. I have no problem with that. These people who swear the destruction of the United States of America are our enemies. They are people who have declared war on us and, frankly, the Authorization for the Use of Military Force specifically said that the President was authorized to go after them, and I—
GG: Let me just stop you there for one second. That was essentially the same exact argument that defenders of the Bush administration made: How can you spy on people without courts, how can you detain people? They would say, look, these are terrorists. They belong to al Qaeda. They are our sworn enemy. How can you oppose eavesdropping and detention of terrorists? Right? That was the argument that—
RF: [It is true that I opposed that kind of detention]. However, there is a legal doctrine that relates to situations where an enemy cannot be captured. That’s a factual question. And I think there are imaginable situations where an American citizen is—and he’s sitting with Hitler in the [German word]—and he’s sworn the destruction of the United States, and the only way to get the guy is through military action, I can see that being an exception. That’s the basis on which the Obama administration has claimed it’s legitimate.
Now I can’t say for sure if that’s right or wrong. I said I was glad he was gone. I can’t say for sure if it was legal. It needs to be litigated, and the ACLU has started litigating this. You are right that if this practice is something that they can just hide behind, some kind of state secrets privilege, and just go around doing this without any subsequent court review or other cases that develop better guidelines, then we have a problem. So it has to be litigated. This man, though, obviously he’s already dead but the concept has to be taken to a much different level and can be. The difference here, though, is that there is no reason to not go to a court, there’s no rationale for not going to a court in wiretapping situations. There is no reason for not going to a court in other situations. This is a place where they have an argument that there is a possibility there that you couldn’t get someone any other way and, even if they’re an American citizen, if there’s no other way then I would say that’s an exception to their due process rights. But it has to be very narrow, as you say, very open, and the law has to be very clear.
GG: Right. I mean just quickly on that: Wouldn’t it at least be a better practice to go and indict the person, so you at least demonstrate to a grand jury that there really is evidence to prove that they’ve committed a crime. They can then turn themselves in that way. There’s at least some process besides just the President deciding in the dark?
RF: Yeah, that’s what we do when we send someone up to Holland for a vacation, up to The Hague. We indict them. We don’t just pick up Bashir. We don’t just pick up Milosevic. We actually have a process. I think that would be preferable. Why would it be bad for the administration to go do that? It’s not like you’re saying you’re necessarily going to go after them. Everybody knew we were trying to get this guy. I think it’s a fair point, and that’s something that should be part of any litigation.
GG: Okay, last question because I know we’re a little limited for time. One of the things that you worked on a lot in your Senate career, and that you’re identified with, is campaign finance reform, which took a big hit with last year’s Supreme Court decision in Citizens United, and yet there’s a tendency to blame the domination of billionaires and oligarchs in this election cycle on Citizens United, even though it seems to me that individuals could, even before this election cycle, could spend as much as they want on electioneering. In this post-Citizens United world, how much do you blame that specific court decision for what we’re seeing now with the huge amounts of money flooding the system, and if that decision remains in place, what do you see as the best course for fixing some of these problems? Is it public finance? Is it a Constitutional amendment? What are your views on that?
RF: So I’m supposed to do this in two minutes? This is bigger than—[LAUGHTER]. Let me say this: It is absurd to suggest that Citizens United didn’t change the game. That’s the myth of the right that they’re trying to come up with. I know this—there’s something different. Individuals never did this for a reason, and I think I’m beginning to identify what it is. It has less to do with public corporations than privately held corporations. These super-rich guys are now raiding their private corporations for this money, and they didn’t used to do that. That’s what’s different. And you know what Glenn? Things were different in 2006 and 2007. McCain-Feingold had banned contributions to political parties. Whatever activity the 527s undertook was ultimately found to be illegal. What they did was illegal. People turned to the internet, to electronic democracy, to small contributions. We can’t let our cynicism about this cloud our vision of what actually happened. 2006 and 2008 were terrific improvements in the campaign system. I believe that the corporations of this country and the powers that be saw the face of democracy and were terrified and engineered the Citizens United decision. We cannot fall into this trap of saying, you know, it’s always going to be the same. We had this thing to moving in the right direction, and the only thing that put us backward was Citizens United. It is the key to this whole issue. That’s my answer.
GG: Excellent. I very much appreciate that. I appreciate your time. It really is a great book. I really enjoyed reading it. Congratulations on it and good luck with everything.
RG: Thank you for your time. Bye bye.
GG: Talk to you soon. Bye bye.