Giving Thanks to Outgoing Sen. Feingold

Long before there was Jeffrey Goldberg hyping “dignity” for air travelers, and Charles Krauthammer declaring that don’t “touch my junk” is the “anthem of the modern man, the Tea Party patriot,” there was Sen. Russell Feingold of Wisconsin.

Since this week is about giving thanks, I’d like to begin by expressing gratitude for Democratic Sen. Feingold, one of the few politicians on the national stage who gave a damn about individual rights and liberty before it was so fashionable to do so. In fact, the liberal senator’s enduring fidelity to the Constitution and refusal to capitulate to Republican (and Democratic) pressure wasn’t convenient, it was brave and it was critical, particularly after 9/11, when the whole country was pumped and ready to hand over every liberty granted at the founding of this country in return for so-called national and homeland security.

But his November loss to Tea Party Republican Ron Johnson seems to have made barely a whisper in the raucous post-election discourse. My guess is that establishment Democrats are embarrassed they didn’t support him and lost the seat, while party Republicans see him as just one of many in their midterm wave of upsets. Meanwhile, conservative-libertarians never really thought of him as one of their own anyway.

If they had looked beyond the labels, however, they’d have seen that on civil liberties and national security, Feingold was a true champion, having more in common, for example, with Republican Rep. Ron Paul, than most of the Democrats on the Hill, who either caved or remained ineffectually silent on the most important issues of our day. He routinely voted against his own party, while dodging stink bombs from law-and-order Republicans who for eight years merely existed as sycophantic foot soldiers for the executive power-grabbing Bush Administration.

Feingold famously said this just before Congress passed The PATRIOT Act, the most sweeping new police powers ever granted to the federal government in the history of the nation:

Oct. 25, 2001:

“Some have said rather cavalierly that in these difficult times we must accept some reduction in our civil liberties in order to be secure.

“Of course, there is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists.

“But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.”

If you read his entire Senate floor speech, you will see that every fear Feingold invoked about government overreach in the wake of the 9/11 attacks has been realized on some level, and in cases he hadn’t even anticipated. Feingold, in what Glen Greenwald calls “one of the most courageous political acts of the last decade,” ended up being the only senator to vote against the PATRIOT Act in 2001, and continued to fight to reform or eliminate its provisions throughout each sunset and reauthorization well into the Democratic Obama Administration.

Meanwhile, law-and-order Republicans and neoconservatives like Goldberg and Krauthammer have been the PATRIOT Act’s greatest defenders, sneering at anyone who might suggest that its tenets strike at the heart of the U.S. Constitution. Up until now, the only problem they’ve had with airport screening has been that it’s not effective enough, and doesn’t incorporate the profiling of Arab and Muslim passengers. In fact, not once in Goldberg’s 3,100-word ridicule of airport security in The Atlantic back in November 2008 does he mention the words “dignity,” or passenger “rights,” although his own recent pat downs at various airports have led to cocky invective and at least one appearance on the Colbert Report, arguing self-righteously against intrusive and “humiliating” security procedures (though he boasts fatuously that the frisking he endured “in the Bekaa Valley, by Hezbollah security officers” was much more thorough. As a former prison guard with the Israeli Defense Forces, he should know).

Meanwhile, Sen. Feingold is a Democrat, a loser, and on his way out after a 10-round bout with Johnson, who supports REAL ID (federally standardized licenses, otherwise known as a national ID) and the PATRIOT Act “as a necessary tool for law enforcement.” So one of the few genuinely outspoken defenders of civil liberties in the Senate – in the entire Congress – will depart quietly among the din of Tea Party “revolutionaries,” many of whom have supported the very surveillance and “counterterror” measures they raise hell about today.

During Bush II, of course, the mantra was “if you’ve got nothing to hide, then you shouldn’t mind.” Now it’s “don’t touch my junk.” It doesn’t take Frank Luntz to figure out what happened from point A to point B. This latest outrage about airport security is happening under the auspices of a Democratic administration, under a president Republicans loathe and a Secretary of Homeland Security for which they have very little respect.

Back to Feingold. While libertarians might have written him off as an old school liberal, on civil liberties and the war he could talk their language. Here, Feingold not only bucked Bush and the GOP, but his own party. Often he was frustrated and nearly alone as a bulwark against Bush’s overzealous policies, while the Democrats quivered and folded like a house of cards, never rising to the occasion. In 2006, as he pushed, however futilely, for the censure of President Bush over the National Security Agency’s secret warrantless spy program, he told Fox News that Democrats, many of whom had begun to turn on him (there were midterm elections to think of), were yellow. “I’m amazed at Democrats, cowering with this president’s numbers so low,” he said. “The administration just has to raise the specter of the war and the Democrats run and hide.”

That’s exactly what they did. All the way up through the current Obama administration, the Democrats avoided every opportunity to protect Americans against warrantless surveillance and illegal search and seizure, to end the war, to hold the Bush administration accountable for the torture of terror suspects and foreign combatants overseas, to close Gitmo and much more.

In 2008, Feingold and fellow Democratic Sen. Chris Dodd unsuccessfully tried to filibuster the FISA Amendments Act of 2008 from coming to a Senate vote (the bill pretty much gave Bush retroactive authority to continue the warrantless wiretaps and give legal immunity to telecom companies that had helped the administration spy on Americans). While every Republican present predictably voted for the bill, Feingold saved his ire for the Democrats attempting to end debate, charging, “this is not a compromise; it is a capitulation.”

“And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.”

In April 2009, the Obama Administration said it would not “close the door” but made it plain it wanted to “move ahead” rather than expose and prosecute the Bush/Cheney policies that led to waterboarding and other questionable interrogation practices by the CIA and the military on the so-called global battlefield. Feingold called waterboarding “torture, plain and simple,” and referred to the CIA interrogation program as “profoundly wrong,” and “horrifying and unforgivable.” He even hinted at the Nazis as he criticized the suggestion that White House lawyers who wrote the policies should be immune from prosecution. “(I) remember when people said they were ‘just following orders,’” he noted in a public appearance at the time.

Attorney General Eric Holder later appointed John Durham as a special prosecutor to investigate the CIA’s interrogation program. So far, Durham has announced he would not prosecute the former director of the CIA’s special operations branch for destroying 92 tapes depicting interrogations in which waterboarding and other “controversial” techniques were used.

On the war front, Feingold has called for an investigation into the 2009 revelations that a CIA paramilitary assassination squad had been operating overseas and kept secret, even from Congress, at the direction of Vice President Dick Cheney. He has also criticized Obama’s continuing invocation of the state’s secret privilege and his support for prolonged detentions without charge for foreign terror suspects. Feingold was an early critic of the Iraq War and opposed the 2009 troop surge into Afghanistan, again, bucking the President and most members of his party.

“Why would you create this further environment that is perceived as occupation in Afghanistan?” he said on Democracy Now! back in May 2009. “I think it’s counterproductive… I think troop buildup is dangerous.”

As for travelers’ rights, Feingold was the author of a bill two years ago that took umbrage with border security agents randomly seizing property for “homeland security” inspections. His arguments prefigure today’s anger from Republicans and Tea Partiers over airport security pat-downs and intrusive full body scanning:

“Focusing our limited law enforcement resources on law-abiding Americans who present no basis for suspicion does not make us any safer and is a gross violation of privacy,” Feingold said upon introducing the Travelers’ Privacy Protection Act of 2008, which he wrote in response to reports that since 9/11, border patrol agents had been randomly seizing laptops, digital cameras, cell phones and other electronic devices at the border and at airports without search warrants, or probable cause. The bill never went anywhere. Meanwhile, the ACLU found that some 6,500 people traveling to and from the United States – half of them American citizens – had their electronic devices searched from 2008 to 2010, and in 280 cases from 2008 to 2009, agents transferred private data from the devices to unnamed federal agencies.

They might have lost that fight, but the ACLU has a lot to thank Feingold for overall, knowing full well the implications of this month’s election on their representation on Capitol Hill, at least in the Senate.

“Regrettably, relatively few Members of Congress have stood up against the erosion of civil liberties in the name of national security after 9/11,” said Jonathan Hafetz, a former ACLU attorney, now a constitutional law professor at Seton Hall University, in an email exchange with Antiwar. “Senator Feingold was one of those Members, and Americans who care about the rule of law and constitutional values should mourn his departure.”

Now, one may not like Feingold for other reasons, especially conservatives and libertarians who want to see their limited government values extended to other areas of policy. Critics in Wisconsin have pointed to his support for the recent health care reform bill, and Obama’s economic policies, as proof he is out of step with the American public (though he did vote against the bank bail-out and is one of the co-sponsors on a bill to audit the Federal Reserve). The Second Amendment crowd might also have a problem with his voting record on gun rights.

But hardly has he been accused of being venal, unfair or closed-minded.

Looking back to the late 1990s, Feingold was best known for his role in campaign finance reform, seeing big moneyed interests as a corrupting force in democratic politics. Conservatives railed against the infamous McCain-Feingold bill, also known as the 2002 Bipartisan Campaign Reform Act, which put all sorts of restrictions on soft money and other contributions to federal campaigns, most of which have since been gutted by federal rule-makers and the U.S. Supreme Court as unconstitutional. Ironically, many say Feingold’s quixotic battle against Big Money (he personally declined contributions from outside advocacy groups) was partly to blame for his surprising loss in November.

But it’s all over now, at least his time in the Senate, where one can say Feingold was a “maverick” without the smarmy wink and a nod one usually uses in reference to his colleague John McCain, who has been anything but a maverick where it really counts. We can at least appreciate the rare existence of a modern politician who in these lamentable times of two-party rule and executive authority run amok, chose to act – many times against his own self-interest – independently, defending ordinary citizens from the corruption of government power. He may not have achieved everything he set out to do, but who knows how much worse it would have been without his resistance and dissent, and for that, at the very least, we should be thankful.

Author: Kelley B. Vlahos

Kelley Beaucar Vlahos, a Washington, D.C.-based freelance writer, is a longtime political reporter for and a contributing editor at The American Conservative. She is also a Washington correspondent for Homeland Security Today magazine. Her Twitter account is @KelleyBVlahos.