Feingold hopes, expects new AG to say president is not above the law

therawstory
Nick Juliano

In exclusive interview, Democratic Senator outlines hopes for next administration

President-elect Barack Obama prepares to enter the White House with his plate full of domestic and international crises — financial markets in free-fall, auto companies nearing collapse, millions of Americans struggling to keep their homes, wars in Iraq and Afghanistan.

Along with those pressing, front-page issues Obama also will have to swiftly redefine President Bush’s attempts to institutionalize expansive executive power and work to reverse many of the president’s most egregious policies, say lawmakers and civil libertarians.

Sen. Russ Feingold has been among Bush’s most vocal critics. The Wisconsin Democrat says Obama needs to indicate a clean break with the view advanced by the Bush White House that the president’s Commander in Chief powers, laid out in Article II of the constitution, allow the president to ignore the whims of Congress.Bush used this interpretation to justify his warrantless wiretapping program that was conducted outside the boundaries of the law and to authorize a host of controversial policies regarding detainees rounded up in the war on terror.

“They just take the view they can do whatever they want, and they use it in many contexts,” Feingold told RAW STORY. “So, in a variety of ways, that doctrine has to be rejected, by executive orders, by legislation, I think even, ideally, by the president making a brief statement with regard to it in his inaugural address.”

During a brief interview from his office in the Heart Senate Office Building Thursday morning, Feingold outlined his expectations for an Obama administration. (A full transcript of the interview is available here.)

A member of the Intelligence, Judiciary and Foreign Relations Committees, Feingold sits at the nexus of many of Bush’s most controversial policies. He also will play a key role in confirming many of President-elect Obama’s appointees. When Attorney General nominee Eric Holder comes before the committee, Feingold promises to press him for his views on the limits of executive power.

“There’s no question that one of the things that will be important to me and many other senators will be … Mr. Holder’s view of the role of the powers of the president, particularly under Article II of the Constitution, and whether they trump Congressional acts,” Feingold said. “Mr. Gonzales was unable to give me a satisfactory answer to that question, as a result, I voted against him. Because if the attorney general cannot say that the president isn’t above the law, basically, I’m not voting for him.

“And so I’m very confident Holder’s answer will be excellent,” he continued. “But that will be one of many areas that I will be taking up.”

While Feingold acknowledges that issues like civil liberties, government transparency and privacy may not be at the front of voters minds amid all the other troubles facing the country, Feingold says he will continue to work quietly to improve conditions that have worsened over the last eight years.

“It’s on the front page when really awful things are being done. When we fix ’em, maybe it won’t get any press at all. That’s OK,” he said. “I’m not looking for big headlines, I’m just looking to fix it.”

Earlier this year, he led the charge to attach protections for Americans’ privacy to an update of the Foreign Intelligence Surveillance Act and to prevent the FISA Amendments Act from granting legal immunity to telecommunications companies.

While his attempts to modify the bill were largely unsuccessful, Feingold is optimistic about writing extra privacy protections into surveillance law now that Bush is leaving office. When FISA was being debated, Bush vowed to veto any bill that was not completely in line with his own proposal. That ultimatum — combined with the administration’s penchant for questioning opponents patriotism — made it difficult for Feingold to garner enough support for his privacy fixes.

“The problem that we had under President Bush is that what he would do is present unacceptable packages of legislation that involved anti-terror and other measures that we all supported, but he refused to put in the protections that were needed. And they would say, well … then you’re voting against the whole bill,” Feingold said, predicting an Obama administration would be more accommodating.

“Even if they oppose some of the fixes, they’re not going to use the same tactics that the Bush administration did, which was basically calling into question people’s patriotism, or desire to stop terrorism,” he continued. “I don’t think we’re going to get that kind of monkey business from this administration.”

Feingold also has sharply criticized the practice of holding prisoners indefinitely without charge at Guantanamo Bay and was an early critic of Bush’s decision to invade Iraq.

Obama “has said all the right things,” regarding those issues, Feingold said. As an Illinois senator, Obama voted for a timetable to withdraw troops from Iraq. He also voted in favor of Feingold’s amendments to FISA, although the two split on the final bill. Soon after his election, Obama reiterated his pledge to close Guantanamo.

“This is going to be, I think, a wonderful cooperative effort, where we’re going to get action right away,” Feingold said. “Some of the things are going to get taken care of right away, some of the things are going to take longer. But I’m committed to working on this over the next few years, and I can’t imagine a better person than President Obama.”

Independent civil liberties advocates are cautiously optimistic about the prospects of an Obama presidency.

“There have been expressed commitments, and we expect people to follow through with them,” Caroline Fredrickson, the American Civil Liberties Union’s top Washington lobbyist, told RAW STORY recently.

Congressional inquiries into President Bush’s alleged abuses and executive power grabs didn’t really get off the ground until after 2006, when Democrats regained control of Congress, ending a period of unified party control. Now that the same party is back in charge on both ends of Pennsylvania Avenue, there are fears that Democrats may be more sympathetic to claims of executive power from President Obama.

“We’re going to be just as critical of President Obama and Democrats in Congress as we were of Republicans if they don’t do the right thing,” Fredrickson promises. “Everyone has such high expectations, and I tell them, ‘You have to understand, it’s going to be hard.”

Feingold likewise hopes his colleagues would be critical of Obama if he snubs Congress like Bush has had a habit of doing.

“But I don’t think that’s going to happen,” he says. “My sense is that the people that President Obama will have around him will want to accommodate Congress.”

A big question facing Bush administration critics looking forward to an Obama presidency revolves around how much time and attention should be given to continuing to flesh out the details of the outgoing president’s transgressions. The ACLU wants an independent commission, akin to the Church Committee of the mid-1970s, established to fully examine President Bush’s time in office, and the idea has gained a bit of support in Congress.

Feingold said he’s not opposed to such an idea but seemed more concerned with moving forward.

“My focus is on what I can do working with the new administration to repair these things apart from any commission,” he said.

The senator chairs the Senate Judiciary’s Subcommittee on the Constitution; earlier this summer he presided over a hearing on proposals to restore the rule of law after Bush leaves office. Obama’s transition chief John Podesta, a former Clinton administration official who runs the liberal Center for American Progress, was a witness at the hearing.

There also is a question of how to bring accountability for officials who may be guilty of crimes. Feingold called on Bush not to issue blanket pardons before leaving office, which would essentially “let folks off the hook in advance.” Inquiry into Bush administration actions can’t supersede issues like the financial crisis or wars in Iraq and Afghanistan, Feingold said, but it should be a priority.

“Whether it be through prosecutions, investigations, oversight, legislation … there’s a wide range of things we can do in the context of accountability without getting carried away,” he said.

The public should pressure Bush not to issue pardons to government officials “so that we can consider whether criminal [charges] or other accountability would be appropriate,” he continued. “I’m not ready to say that it is, but I don’t want it taken off the table by presidential, by abuse of the presidential pardon power.”

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