The Anti-Politics of Russ Feingold

If Senator Russ Feingold ever lost any sleep about how to get his name on the front side of a hyphen after the passage of the McCain-Feingold Act, without question he succeeded with his latest gambit to stick it to President Bush on the issue of warrantless wiretaps. With the demeanor of someone who had just passed a course in brow-furrowing 101, the Senator gravely proclaimed that the president had violated the Foreign Intelligence Surveillance Act, which he and a few others regard as an offense deserving of Senatorial censure.

A Senatorial censure? Really? Let’s take a look at this. First, FISA was passed in 1978 during the polyester decade, when Bill Gates was in his intellectual diapers, and Steve Jobs belonged to that age group when Apple represented nothing more than a piece of fruit. This act looked more backward than forward. As noted by Senator Pat Roberts, Chairman of the Senate Intelligence Committee, FISA was enacted “largely in response to abusive use of warrantless electronic surveillance to target U.S. persons for domestic activities (emphasis added),” and did not address the sort of national security concerns that became significantly more important after that date. Motions to censure a chief executive for violating this act is something like denouncing President Chester Arthur, who served over a decade and a half after the Emancipation Proclamation, for failing to enforce the Fugitive Slave Act of 1854.

Okay, perhaps it’s not quite that bad, but questions about the FISA’s relevance in the post-9/11 world remain. Nowadays, by the time the judges’ be-robed brain cells emerge from the spin cycle, the perpetrators will be laughing their way back to the next cell meeting of Terrorists R’ Us, erasing their hard drives, pitching their disposable cell phones into a river, and shaking their heads while trying to find words that rhyme with infidel and idiot. In short, catching the bad guys before they carry out their plans is precisely the reason to penetrate their communication links to foreign sources.

This is exactly what President Roosevelt had in mind when he authorized warrantless electronic surveillance before World War Two. “It is too late to do anything about it after sabotage, assassinations, and ‘fifth column’ (traitorous) activities are completed,” he asserted. President Bush expressed the same sentiments when he stated that when terrorists are talking with their fellow plotters overseas, we want to know about it. Strictly speaking, this is not domestic surveillance, “spying,” if you will; it is monitoring of international communications with domestic connections on matters of vital interest to our national security.

Naturally, many of the President’s opponents don’t see it that way, and it is important to understand why. Senator Feingold’s measure represents more of a plunge into a sort of political land of Ha-Na-Lee, populated by such magical creatures as Puff the Magic Dragon, unbiased New York Times reporters, and other mythological beasts. It is in anti-politics, where one’s own supposedly noble intentions reign supreme, where the larger picture is obscured by the miasma of self-righteousness, and where ill-informed legal interpretations trump considerations of the national interest.

The intentions part is not hard to figure out; Feingold’s supposedly are pure and committed to the law that the Bush Administration is accused of ignoring. The larger picture is the war on terror, which Feingold and those who agree with him simply refuse to take seriously. Indeed, how else can one interpret those breathless news headlines of the NSA “spying on American citizens,” indiscriminately, as though grandmothers surreptitiously passing along secret cookie recipes to their grandkids in Dubuque were as likely to be listened to as a fellow with an Arabic accent chatting with a guy from Gaza, about the structural vulnerabilities of the Brooklyn Bridge. Finally, these points, as well as faulty legal interpretations that hamper national defense, should have been flattened by the 2002 decision of the FISA Court of Review (In re Sealed case, 310 F.3d 717 For. Int. Surv. Ct. Rev. 2002), which “took for granted that the President had inherent constitutional authority to conduct foreign intelligence surveillance,” in the words of Attorney General Gonzales.

Warrantless wiretaps only became an issue after news of their use was leaked to The New York Times, which suffered from another of its frequent attacks of Al-Jazeera-itus. Members of the Senate Select Committee on Intelligence knew all about what was going on long before the good Senator, also a member of that committee, was afflicted by hot flashes of conscience. Presumably, he and his colleagues privy to secret briefings about NSA wiretaps over the past several years found nothing objectionable; otherwise they would have made their objections known and/or tried to change the law. Then “normal” politics would have kicked into operation, where the larger issue of balancing national security concerns with protection of civil liberties is argued in a fashion that involves the necessary trade-offs one always finds in the wonderfully messy world of Congressional democracy.

All of which comes down to a question of the relevance of anti-politics in a policy world of anti-terrorism. Without question, the former infuses politicians who embrace it with warm fuzzies: they’re noble, they’re righteous, they’re politically correct. But as far as terrorists are concerned, they’re also useful idiots, to borrow a term from Lenin. It’s time that Senator Feingold and others understand this.