It's being described as the most significant revision of the nation's surveillance law in three decades. The Senate is preparing to vote on rewriting the nation's Foreign Intelligence Surveillance Act and giving immunity to phone companies involved in President Bush's secret domestic spy program. We speak with Senator Russ Feingold (D–WI), who has been the leading congressional voice against the Bush administration's warrantless spy program since it was exposed nearly three years ago.

    "One of the greatest intrusions, potentially, on the rights of Americans protected under the 4th Amendment." - Senator Feingold blasts telecom spy bill.

    Transcript

    Amy Goodman: It's being described as the most significant revision of the nation's surveillance law in three decades. The Senate is preparing to vote on rewriting the nation's Foreign Intelligence Surveillance Act and giving immunity to phone companies involved in President Bush's secret domestic spy program. On Friday, the Democratic-controlled House approved the measure by a vote of 293-129. The legislation gives the government new powers to eavesdrop on both domestic and international communications. The American Civil Liberties Union has warned it would allow for the mass, untargeted and unwarranted surveillance of all communications coming into and out of the United States.

    While Democratic leaders in Congress, as well as Democratic presidential candidate Barack Obama, have hailed the bill as a "compromise," Democratic Senator Russ Feingold of Wisconsin describes it as a "capitulation." Senator Feingold has been the leading congressional voice against the Bush administration's warrantless spy program since it was exposed nearly three years ago. Today, the Wisconsin senator joins us from Washington, D.C.

    Welcome to Democracy Now!, Senator Feingold.

    Sen. Russ Feingold: Good morning, Amy.

    Amy Goodman: Can you describe the legislation that the Senate is considering, is expected to pass by Friday?

    Sen. Russ Feingold: Well, this is a great blow to the rights of the American people. And much of the publicity has been about a very important aspect: giving these telephone companies immunity that cooperated with the President's illegal program. We think that should be decided based on current law, not some kind of a retroactive immunity. But that's essentially what this bill does.

    But you know what? Even worse are the provisions of the bill that will make it very easy for the government to essentially suck up the communications, all communications of Americans that go overseas, whether it's an email or a text message or a phone call to a daughter, junior year abroad, or a child who's in Iraq or a reporter or a business associate. This is 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.

    And unfortunately, it's going to go through with the help of some Democrats. So this is a very, very sad day for our Constitution and for our rights, and it's not justified by the terrorism issue, because we do not have any problem at all with going after anybody that we have reasonable suspicions about. It has to do with sucking all this information into a huge database in a way that is very intrusive on the privacy of all Americans.

    Amy Goodman: What role did the telecommunications companies play in writing this bill?

    Sen. Russ Feingold: Well, they clearly wanted this immunity. They think they should be let off the hook, regardless of what the current laws require. I think, and many of my allies on this think, that the courts should decide it based on the law.

    Sadly, the administration has been very behind the telephone companies' desire to have this immunity, maybe even leading the charge, because there is an additional benefit to them if this immunity goes through. It may block our ability to directly challenge in court the violation of the Constitution that the illegal wiretapping program represents.

    The President takes the position that under Article II of the Constitution he can ignore the Foreign Intelligence Surveillance Act. We believe that that's absolutely wrong. I have pointed out that I think it is not only against the law, but I think it's a pretty plain impeachable offense that the President created this program, and yet this immunity provision may have the effect not only of giving immunity to the telephone companies, but it may also allow the administration to block legal accountability for this crime, which I believe it is.

    And, you know, the United States Supreme Court, even though seven out of the ten justices - seven out of the nine justices were appointed by Republicans, they just recently repudiated the President again on excessive executive powers when it came to the detainees. Here, they may do it also, and it would be a very significant ruling. And yet, the administration may well be able to block accountability on this in front of the courts by this legislation that Democrats are going to allow to go through.

    Amy Goodman: Senator Feingold, explain exactly what you think is an impeachable offense.

    Sen. Russ Feingold: Well, you know, this is one of the things that's been debated over the centuries, but I believe that when - it has to do with the rule of law and the very structure of our system of government, in other words, not just the issue that many have been concerned about, misleading the country into war, the Iraq war. That was a terrible thing, and, you know, some say that's an impeachable offense. But to me, when the law is clear, when it's absolutely clear that there is a clear statute and the President creates his own idea of a law and says he doesn't have to follow the duly elected laws of the land, to me, that's right at the core of what the founders of this country meant when they talked about high crimes and misdemeanors.

    So, I'm not calling for impeachment. I'm not saying that that's something that's realistic or the right thing for Democrats to do at this point. What I'm saying is the idea of a law that will prohibit the courts potentially from ruling on this is against the rule of law and also protects the President from a historical record that I think should show that he did something that was at least impeachable when it comes to these warrantless wiretaps.

    Amy Goodman: Now, last year, you called for President Bush and Vice President Cheney - it was just about a year ago - to be censured, not impeached, but censured. Do you think they should be impeached now?

    Sen. Russ Feingold: I think they should be censured. I think the idea of going through an impeachment process at this point is obviously not going to happen and a sort of a futile exercise, because there's simply not the will to do it. But I think a censure resolution that essentially lays out the same case, that for the first time since Andrew Jackson says this president has actually violated the laws of the land and has disregarded our system of government, is a very important step. I know it won't happen. I know it's not going to be brought up. But I do think it would be the appropriate step and at least set the stage for pulling back on these excessive claims of executive power that were made by this president. The next president has to renounce these kind of claims, and I think a censure resolution would help that.

    Amy Goodman: What's stopping your colleagues from doing this? The argument they use against impeachment is what you said: whether or not it's merited, they don't want to get bogged down, and they feel the election is a form of impeachment, if the Democrats win. But what stops them from censuring the President and Vice President?

    Sen. Russ Feingold: Well, I wish they would do it. I'm sure what they would say, and I do understand it at some level, is we want to show the American people that our focus is on solving their problems - healthcare, getting us out of Iraq, getting away from dependence on foreign oil - and that that's what the image that we want to have going into the election. That's an understandable argument, but it begs the question of, what about history? What about the rule of law? How do you justify not doing something? So that's why I think censure is a good combination with our primary focus on trying to show that we're going to have a different regime when we come in, it's going to be a different approach to these issues. But I do know that most Democrats are not interested in pursuing the censure at all.

    Amy Goodman: Back to FISA, the FISA law, the House Democratic leaders call it a bipartisan compromise, because instead of giving blanket retroactive immunity to phone companies that facilitated the President's spy program, it would route the grants of immunity through a district court. As long as the companies can demonstrate to a judge that they were instructed to spy on Americans by the President or the Bush administration, they would be spared the trouble of litigating at this point, what, more than forty lawsuits against them, and there's many more expected. What's your response to that?

    Sen. Russ Feingold: It's not even a fig leaf; it's a joke. It does not in any way prevent the ruling from that court, basically automatically, of immunity, because it just involves saying, "Look, they've got a piece of paper from the government." This is nothing but Democrats trying to pretend that they're doing something here. They are doing nothing. They're giving in. Senator Kit Bond, a Republican from Missouri, is basically giggling at the fact that the Republicans and the administration got essentially everything they want on this. It's sadly a great failure on the part of the Democratic majority that was elected in 2006 primarily to get us out of Iraq, but also significantly to protect the Constitution of the United States. This is not a proud moment.

    Amy Goodman: Who do you feel is in charge right now? Is it the Democrats or the Republicans?

    Sen. Russ Feingold: Well, you know, on the domestic issues, the Democrats are doing pretty well, except for when we run into a filibuster. So we have been able to get some achievements. But whenever you come up against one of these national security issues, the President and the fear of Democrats of standing up to the President and the Vice President still have the trump card, and they seem to always win, on whether it be the Iraq issue or the Constitution or the civil liberties issues, because Democrats are still afraid to stand up and say, "Look, we know you're using fear as a tactic, and we're not afraid of it." But unfortunately, they still have the trump card, despite the very low popularity of the President and the fact that it's a lame-duck administration.

    Amy Goodman: Senator Feingold, will you filibuster this bill?

    Sen. Russ Feingold: We are going to resist this bill. We are going to make sure that the procedural votes are gone through. In other words, a filibuster is requiring sixty votes to proceed to the bill, sixty votes to get cloture on the legislation. We will also - Senator Dodd and I and others will be taking some time to talk about this on the floor. We're not just going to let it be rubberstamped.

    Amy Goodman: Would you filibuster, though?

    Sen. Russ Feingold: That's what I just described.

    Amy Goodman: Senator Barack Obama last year said that he was opposed to granting retroactive immunity to the telecoms, but he has now indicated support for the FISA deal. Your thoughts?

    Sen. Russ Feingold: Wrong vote. Regrettable. Many Democrats will do this. We should be standing up for the Constitution. When President Obama is president, he will, I'm sure, work to fix some of this, but it's going to be a lot easier to prevent it now than to try to fix it later.

    Amy Goodman: Campaign finance. Feingold, McCain - McCain-Feingold bill. Last week, the big news, Senator Obama, though signing on the dotted line last year that he would support public financing, that if the other candidate, as well, would support, would be a part of it, he would also, he has pulled out of this. What are your thoughts, as the architect of the campaign finance bill in the Senate?

    Sen. Russ Feingold: Well, my first thought is that Barack Obama is going to be a great president. I am absolutely moved by his candidacy. I will be very excited to work with him as the new president. But on this particular issue, I wish he had not made this decision about his campaign. He was one of the very first senators to come forward and co-sponsor our legislation to fix the system.

    But the system is primarily broken when it comes to the primaries, as Senator Obama just witnessed. The general election system is not broken in the same way, and there is no good reason, in my view, for a candidate to say that $84 million isn't enough, given the exposure that both of these candidates have already had. So it's a sad moment.

    Hopefully, again, under President Obama, we will aggressively move to change the system and fix it across the board, because the new election, of course, starts right away. In 2009, even in 2008, people start running around Iowa. We need to get this in place and fix it. But I do regret that for the first time a candidate is not going to be taking public financing in the general election.

    Amy Goodman: What about his argument that when you're less well known, you're at a disadvantage if you can only spend a certain amount of money, even if the opponent, in this case John McCain, can only spend that amount of money, as well?

    Sen. Russ Feingold: Well, that would mean we wouldn't have any laws like this at all. If you can make the argument that you're not very well known, therefore you should be able to do whatever you want and not abide by a public financing system that has been in place for twenty-five, thirty years, it just undercuts the whole rationale of having public financing, which I believe in, which Senator Obama believes in, and should be the system that we have.

    Amy Goodman: On that issue of campaign finance, the issue of the 527s, that even if you're limited in - both candidates to the same amount of money spent in the general election, that these 527s are not, and they can be running a major campaign, as, well, the swift-boating of John Kerry in 2004 showed?

    Sen. Russ Feingold: Yeah, well, you know, I think candidates that really present their message well should not be afraid of 527s. 527s are a form of speech that I happen to think actually are not allowed under the Watergate law. And Senator McCain and I actually have both legislation and litigation that would prove that. But until we have finally gotten the determination on that from the courts, the 527s may well continue. But the notion that a candidate should spend himself into oblivion as a way to counter that, I think it actually is a gift to the 527s. Candidates that show that they're willing to abide by a certain limit to get their message out, I think, will appeal to the American people. But I know there's a great disagreement about this, and in the end, we're going to have to do something about the 527s.

    Amy Goodman: We're talking to Senator Russ Feingold, Democratic senator from Wisconsin, opposed to the FISA legislation that could well be approved this week. Is it a done deal, Senator Feingold, or do you think people can weigh in?

    Sen. Russ Feingold: People should weigh in, even though it is a done deal for now. But we are going to have a new president. And the new president, I think, will be Senator Obama. And I know that he has sensitivity to the issues here, both with regard to the telephone company issue, but even more importantly, I think obviously he has a good sense of the intrusive nature of some of these issues with regard to the sucking up of our information, our telephone calls of an international nature. So, showing public concern about this now creates a platform to try to fix this in the future.

    It is sunsetted, but it's not sunsetted 'til 2012, which is way too long. But there will be an opportunity to build public support to fix this, and I intend to be part of that effort, and I hope the new president will. So I've seen quite an outpouring on this already. Let's keep it going. Let's make it clear that there is a constituency in America that still stands up for the rights of Americans and their privacy.

    Amy Goodman: Senator Feingold, I know you have to go. I want to ask you about you writing to Attorney General Michael Mukasey in December asking for his analysis of the legality of the CIA's detention and interrogation program. Have you gotten a response from him?

    Sen. Russ Feingold: I am not able to talk about that right now.

    Amy Goodman: Last question: the war - what is your proposal right now for withdrawal?

    Sen. Russ Feingold: It continues to be the Feingold-Reid legislation that would set a timetable by which our troops would be safely withdrawn, and at the end of that period, the funding would be withdrawn after the troops are safely withdrawn. I still believe that's the only way to go.

    This open-ended commitment in Iraq is weakening America. It is not achieving what we need to achieve. I was just in Pakistan looking at the situation, where all of our top experts agree the biggest problem is with regard to al-Qaeda and terrorism, and we've got our focus all wrong. It is draining us. Osama bin Laden said in 2004 his goal wasn't to defeat us militarily; it was to bankrupt us. And that's exactly what Iraq is doing at this point, without the benefits that the American people expected.

    Amy Goodman: Senator Russ Feingold, I want to thank you for being with us.

    Sen. Russ Feingold: Thank you.

    Amy Goodman: Democratic senator from Wisconsin, joining us from Washington, D.C.