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Court: Feingold's Right On Wiretaps, Censure, Bush -- and Obama | The Nation

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John Nichols

John Nichols

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Court: Feingold's Right On Wiretaps, Censure, Bush -- and Obama

Senator Russ Feingold is not one to say: "I told you so."

But Feingold did tell us so.

In 2005, when the Wisconsin Democrat who chairs the Senate Judiciary Committee's subcommittee of the Constitution, learned of the Bush-Cheney administration's warrantless wiretapping program, he said it was illegal.

As more details about the undermining of privacy rights that are clearly protected by the Fourth Amendment became clear, Feingold proposed that the Senate censure President Bush for his assaults on the Constitution. Censure, Bush (and Obama) It was a lonely struggle to challenge lawlessness on the part of the executive branch.

But Feingold is no longer so lonely.

He has the federal courts on his side.

A federal judge in California ruled Wednesday that it was illegal for government investigators to wiretap the phone conversations of an Islamic charity group and two American lawyers without a search warrant.

U.S. District Court Judge Vaughn Walker's ruling confirmed the basic principle that Americans cannot be spied upon without proper legal authorization.

As a lawyer for the charity, Jon Eisenberg, explained: "By virtue of finding what the Bush administration did to our clients was illegal, he found that the Terrorist Surveillance Program was unlawful."

Put another way: Feingold was right.

The senator was graceful in acknowledging the fact.

"From the day that I learned about the warrantless wiretapping program in 2005, I have been convinced that it was illegal," said the senator. "Now, despite the government trying to throw up every procedural roadblock imaginable in this case, the judge has ruled that the Bush Administration broke the law. This decision is a positive step toward finally achieving some accountability for the illegal program that President Bush authorized for more than five years. We can and must fight terrorism aggressively without breaking the law.”

That last line is Feingold's fundamental focus. As a member of the Judiciary and Intelligence committees, he knows that it is possible to strike a proper balance between the need to keep Americans safe and the need to respect the Constitution. That's a point he has made for years: with the Clinton administration, with the Bush administration and, now, with the Obama administration.

It was not easy in the Bush years, especially when those who did not respect the right to privacy attacked Feingold.

It is not easy now, when Democrats who claim to respect that right backslide, as President Obama and Attorney General Eric Holder have. Obama and Holder have earned the wrath of Feingold for talking big about the rule of law but continuing to "delay in withdrawing the Bush Administration’s legal justifications for the program."

Republican administration or Democratic administration, Feingold has stuck with the Constitution.

Now that the federal courts say he is right, it is time for the naysayers -- on the right and, frankly, within an Obama administration that should long ago have scrapped Bush's lawless endeavor -- to wake up and smell the Bill of Rights.

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