When Russ Feingold first argued that the Bush administration's warrantless wiretapping program was in clear violation of federal law and the spirit of the Constitution, and that the Senate must censure the president for his wrongdoing, the maverick senator was condemned by the White House, ridiculed by Republicans and given the cold shoulder by most Democrats.
But, now, the Wisconsin Democrat who in March proposed that the Senate censure Bush for flagrantly disregarding the law has a federal judge on his side. And the question becomes: When will Democratic and Republican members of the Senate join Feingold in demanding that the administration be held to account for its assaults on basic liberties and the rule of law?
Ruling on a lawsuit filed by the American Civil Liberties Union on behalf of journalists, scholars and lawyers who expressed concern that the National Security Agency's spying initiative had made it difficult for them to develop and maintain legitimate international contacts and professional relationships, U.S. District Judge Anna Diggs Taylor in Detroit determined Thuesday that the warrantless wiretapping scheme is unconstitutional and ordered its immediate halt.
Holding that the spying program that was authorized and defended by President Bush violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution, Taylor wrote in a 43-page opinion that: "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."
The decision by Judge Taylor offers vindication for Feingold, the ranking Democrat on the Senate Judiciary Committee's subcommittee on the Constitution, who has argued since the NSA wiretapping was exposed last year that the president had dramatically overstepped his powers in authorizing the program.
"Today's district court ruling is a strong rebuke of this administration's illegal wiretapping program," Feingold said on Thursday. "The President must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA's warrantless wiretapping program. Today's federal court decision is an important step toward checking the President's power grab."
The key words in that statement are "an important step." The ruling by Judge Taylor, while significant, does not mark the end of this fight.
This administration will continue to battle judicial efforts to require the president to follow the law.
Ultimately, the job of demanding accountability will fall to the Senate.
At this point, Feingold has only a handful of Senate allies. Iowa Democrat Tom Harkin and California Democrat Barbara Boxer have been with the Wisconsinite since he proposed censure in March. In May, Massachusetts Democrat John Kerry signed on. But most Democrats, including New York Senator Hillary Clinton and Senate Minority Leader Harry Reid, have refused to embrace the proposal.
With the courts stepping in, the time for Democrats and responsible Republicans to step up is now. A failure by senators to respect their duty to check and balance a lawless president makes those disengaged legislators as much a part of the problem as an abusive executive.