March 21, 2006

If Senate Won't Vindicate Feingold, History Will

How can we know if a President isn’t abusing his authority to eavesdrop on American citizens?

We can’t, at least under President Bush’s sweeping claim of wartime executive power.

That’s the issue at the core of Wisconsin Sen. Russ Feingold’s brave and lonely attempt to censure President Bush. Feingold has never asserted that “we shouldn't be listening to al Qaeda communications” as White House Communications Director Scott McClellan falsely claimed. Feingold is challenging the President’s interpretation of the law and whether government can ever spy on Americans without a search warrant, even when Americans are communicating with someone in another country.

Such warrants aren’t hard to get. In 1978, Congress established special courts under the Foreign Intelligence Surveillance Act. The law recognizes that emergency circumstances often require immediate action and allows the executive branch to obtain a warrant within 72 hours of the search. Not only does the law strike a balance between national security and civil liberties, it also respects the balance between the executive and judiciary. America has a long and wise history of checking unlimited power of any single branch of government, especially when individual rights are at stake.

Even if the searches are legal, which many legal scholars vehemently dispute, there’s a public policy issue that goes beyond President Bush. Would Republicans feel comfortable giving a Democratic President this kind of clandestine power? What would keep a Democrat from eavesdropping on Rush Limbaugh hoping to uncover embarrassing information on Limbaugh’s prescription drug history or failed marriages? It was only 40 years ago when FBI Director J. Edgar Hoover, unchecked by search warrants or judicial oversight, abusively wiretapped Martin Luther King, Jr. We can only hope that President Bush is limiting eavesdropping to genuine terror suspects and not gathering information on political adversaries exercising their First Amendment rights.

Nobody argues against eavesdropping on terror suspects. Nobody argues that warrants shouldn’t be classified or post-dated under exigent circumstances. However, it doesn’t take a pacifist to insist that a magistrate -- someone who doesn’t serve at the pleasure of the president -- review electronic eavesdropping requests. It’s not only the law; it’s the only way to conduct surveillance consistent with the Fourth Amendment. Senator Feingold is right to insist that the President honor both the law and Constitution. If Feingold’s fellow Senators won’t vindicate his stance, history will.