Former senator Russ Feingold. (AP Photo/Charles Dharapak)
Russ Feingold is no longer in the US Senate.
And that is unfortunate.
No one took more seriously the duty to defend privacy rights than the civil libertarian senator from Wisconsin, who served for the better part of two decades as the essential member of the Constitution Subcommittee of the Senate Judiciary Committee—and who cast the only Senate vote against the Patriot Act because of the threat he recognized to the guarantees outline in the Fourth Amendment.
But with the report by The Guardian’s Glenn Greenwald that the NSA has been tracking every call by Verizon business customers, and with The Washington Post report that a National Security Agency program took e-mails and other information from companies that included “Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple, it is vital that the new Feingolds in the Senate start to make a lot more noise.
With revelations that "open the possibility of communications made entirely within the US being collected without warrants," engagd members of the House and Senate know that congressional response has to be far more aggressive, as past failures by the House and Senate to provide proper oversight has left the Fourth Amendment at best vulnerable and at worst shredded.
Some senators think that’s acceptable. Indeed, Senator Lindsay Graham, R-SC, has declared himself “glad” that the National Security Agency is obtaining the phone records of millions of Verizon customers. And key Democrats, such as Senate Intelligence Committee chair Dianne Feinstein, D-California, have adopted a “what’s-the-big-deal?” stance that says the spying is old news that senators should have been aware of.
But many of the sharpest and most engaged members of the chamber are rejecting that assessment. Among those stepping up today were Democrats and Republicans who have histories of expressing concern about abuses of privacy rights. In the House, the ranking member of the Judiciary Committee, Michigan Democrat John Conyers, Jr., and the ranking member of the Subcommittee on the Constitution and Civil Justice, New York Democrat Jerrold Nadler, and the ranking member of the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, Virginia Democrat Robert C. "Bobby" Scott moved fast to declare: "The recent revelation that the Foreign Intelligence Surveillance Court has approved the blanket and ongoing collection of telephone records -- including those of everyday Americans with absolutely no ties to terrorism -- is highly problematic and reveals serious flaws in the scope and application of the USA PATRIOT Act. We believe this type of program is far too broad and is inconsistent with our Nation's founding principles. We cannot defeat terrorism by compromising our commitment to our civil rights and liberties."
They're calling for immediate hearings.
But the real action is likely to be in the Senate.
Oregon Senator Ron Wyden, a Democratic member of the Senate Intelligence Committee who has become increasingly outspoken on civil liberties issues, was quick to respond to the Greenwald story, saying: "The American people have a right to know whether their government thinks that the sweeping, dragnet surveillance that has been alleged in this story is allowed under the law and whether it is actually being conducted."
Oregon Senator Jeff Merkley, who has led the fight to declassify secret rulings by so-called FISA (Foreign Intelligence Surveillance Act) courts, was even more pointed in his response to the revelations.
“This type of secret bulk data collection is an outrageous breach of Americans’ privacy. I have had significant concerns about the intelligence community over-collecting information about Americans’ telephone calls, emails, and other records and that is why I voted against the reauthorization of the PATRIOT Act provisions in 2011 and the reauthorization of the FISA Amendments Act just six months ago,” says Merkley. “This bulk data collection is being done under interpretations of the law that have been kept secret from the public. Significant FISA court opinions that determine the scope of our laws should be declassified. Can the FBI or the NSA really claim that they need data scooped up on tens of millions of Americans?”
Senator Bernie Sanders, the Vermont independent who voted against the Patriot Act as a member of the House, made no bones about his objections to Obama-era extensions of a domestic surveillance program that has swept up millions of telephone records on calls by Americans who were not suspected of any wrongdoing.
“The United States should not be accumulating phone records on tens of millions of innocent Americans. That is not what democracy is about. That is not what freedom is about. Congress must address this issue and protect the constitutional rights of the American people,” said Sanders. “While we must aggressively pursue international terrorists and all of those who would do us harm, we must do it in a way that protects the Constitution and the civil liberties which make us proud to be Americans.”
The senator cut the current administration no slack. But he put the broad debate over the NSA phone sweeps—which Senate Intelligence Committee leaders say have been going on since 2007—in perspective.
“As one of the few members of Congress who consistently voted against the Patriot Act, I expressed concern at the time of passage that it gave the government far too much power to spy on innocent United State citizens and provided for very little oversight or disclosure,” said Sanders. “Unfortunately, what I said turned out to be exactly true.”
Their expressions of concern have been echoed by Kentucky Senator Rand Paul, who termed the NSA activities an “astounding assault on the Constitution.”
Paul argues that “If the President and Congress would obey the Fourth Amendment we all swore to uphold, this new shocking revelation that the government is now spying on citizens’ phone data en masse would never have happened.”
The key there is the reference to Congress. The inconvenient truth is that presidents, be they Republicans or Democrats, tend to claim the constitutional space that is afforded them by the House and Senate.
That’s no excuse for the actions of George Bush or Barack Obama. But it is a fact that Congress has done a lousy job of checking and balancing successive administrations who it comes to privacy concerns.
In May, 2011, a complicated set of votes were held on extension of the Patriot Act. Amendments that would have protected privacy rights were defeated and the final vote saw just twenty-three senators—eighteen Democrats including Merkley, independent Sanders and four Republicans including Paul—vote “no.”
That’s way better than the one “no” vote Feingold cast in 2001.
But it is way short of what is needed to defend privacy rights.
With the latest revelation, Congress has an opportunity to do what Feingold begged the House and especially the Senate to do from 2001 on: provide meaningful oversight and real checks and balances on surveillance initiatives that are clearly at odds with a Fourth Amendment protection that says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
Feingold warned us five years ago that Congress, through its inaction and its explicit authorizations of unchecked surveillance in the Patriot Act and rewrites of Foreign Intelligence Surveillance Act, ushered in “one of the greatest intrusions, potentially, on the rights of Americans protected under the Fourth Amendment of the US Constitution in the history of our country.”
Ideally, the pair of former senators who once expressed deep concerns about abuses of privacy rights and now serve as president and vice president would take the lead in addressing abuses.
But it is an understanding that the executive branch rarely surrenders authority that had been ceded to it that led the founders to separate the powers of the federal government. They wanted to assure that, when the executive branch did not act properly, the legislative branch could step up.
It is time for Congress to recognize that Feingold was right in his warning. The potential for for intrusions on the rights of Americans protected under the Fourth Amendment has been realized.
And it must be addressed by a Congress that understands and embraces its role as a defender of the Constitution to which every member swears an oath.
John Nichols is the author (with Robert W. McChesney) of the upcoming book Dollarocracy: How the Money and Media Election Complex Is Destroying America. Hailed by Publisher’s Weekly as “a fervent call to action for reformers,” it details how the collapse of journalism and the rise of big-money politics threatens to turn our democracy into a dollarocracy.