US – Russ Feingold Is One Of The Few “Civil Liberties” Liberals To Whom I’m Still Listening – This Is Why – 9 June 2013

This is an interesting article about the developing NSA brouhaha, relating to the positions taken by the former Senator Russ Feingold from the state of Wisconsin. I was, for the entirety of Feingold’s tenure in the Senate, an unabashed Feingold booster. I’ll never understand why Wisconsin did not see fit to return him to office in 2010. He was a great Senator – and I hope it will not be too long before he returns to electoral politics in some fashion, possibly as a replacement for the current dysfunctional governor his state suffers at the moment. Or perhaps he could be a very palatable alternative to the Hillary Clinton juggernaut for 2016? Well, I can dream, anyway.

One of the reasons I have always been so fiercely defensive of Feingold is that he was always both a strong antiwar voice in the Senate and a strong civil libertarian – but one not given to the ridiculousness I now largely associate with the antiwar and civil libertarian movements, ever since the days of W in the White House. Feingold was the one Senator who would avoid the overblown claims about “Empire” and “secret government plans” and just ask the straightforward and practical question.

Much of my reasoning, for example, about the war in Afghanistan, from which I have long argued the US should call its troops home, is Feingold’s reasoning. The rest of the antiwar left were blathered about sending George Bush to the Hague, blasted Obama for his “endless wars” everywhere, and implied that anyone who might have thought a military response in Afghanistan in the first place was appropriate were warmongers, despite the, you know, 3000 people killed on American soil by people who were trained and housed by the Taliban government in Afghanistan. While they were doing that, Feingold decided he would take a different approach. He basically asked one question about the Afghanistan war, and it is _the_ question: Are we winning?

It has been more than a decade, and the military still refuses to make any kind of a case for what it has been doing. Feingold’s question really goes to the heart of the matter: What goals are we advancing? What changes are being made? Do we have any reason to believe the US is safer than before? Do we have any reason to believe Afghanis are safer than before?

The pragmatic questions of Feingold do more honour to the antiwar movement than any of the shambolic ramblings of so-called liberals who think Barack Obama is worse than Darth Vader.

It is for that reason that I look to what Senator Feingold said when he voted against the Patriot Act in 2001 (a choice which should give him at least some street cred with the anti-imperial crowd) as more of a guide to what sensible liberalism advocates.

Feingold’s opinions about the current phone records controversy are not the same as my own. I am much more sympathetic to the claims of the Obama Administration that the government is using this information solely for law enforcement purposes, and not to snoop unnecessarily into the private lives of Americans. But I can respect Feingold’s differing opinions in a way I really find it impossible to respect those of the firebag blogosphere.

I’m most interested in this comment from Feingold in 2001: “And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.”

I have little problem with this “enormous expansion of authority”, to be honest. I more or less shrugged my shoulders when the Patriot Act was passed initially because I was more focused on the threat from jihadis – who, as I’ve said many times, are far more of a threat to liberal values than anything the ACLU is worrying itself to death about.

But the next part of that sentence – which is pure Feingold, by the way – is exactly where I think the common ground could be found, if the Greenwald Gang were really interested in that instead of winning Purist of the Year Awards and shaming the rest of us for not being as pure of soul as they.

Feingold says it’s an enormous expansion of authority “under a law that provides only minimal judicial supervision”. There Feingold exactly identifies the real problem. I would be absolutely willing to support legislation to expand the judicial supervision over such programs. The problem isn’t that such programs exist, it’s that the executive branch can, under current legislation, decide to investigate anyone without establishing why.

In a way, this is Feingold asking the same kind of practical question he asked about Afghanistan. The executive wants broad powers to investigate, but we have no way of knowing whether these investigations will lead to results that could justify the expansion of those powers. How can we know this? Feingold is right about the answer to that question – we’ll know if you can convince a judge.

Now, it is actually the case that the NSA does still need to get a warrant for the information it gets from these Big Data sources. The warrants are issued secretly, but there is an actual court involved, and judges are still making decisions on the matter. But that doesn’t really address the point Feingold was making.

Indeed, the Obama Administration could have been spared much embarrassment if it had gotten its NSA program involving the phone metadata okayed in broad daylight by a judge who shared the legal opinion with the rest of us. The reason this is an “Obama scandal” which will likely do far more damage to the President than the previous feeble attempts of the Republicans to manufacture one is that any such decision that was made occurred in secret – and Americans, when they hear that, will imagine the worst kind of Star Chamber kind of proceedings rather than a legitimate legal process. (Glenn Greenwald will also do his best to gin up that fear as much as he can, too, you can count on it.)

I think a case _can_ be made for that metadata being gathered. Unlike Feingold, and several of today’s current liberal Senators as well, I think phone metadata provides more safety for Americans than real intrusions into their lives. I would support a legal decision issued by any judge to that effect.

Despite that particular difference of opinion I have with him, I still marvel at Feingold’s basic decency in addressing this question. That evident decency of approach certainly stands in stark contrast to the approach of some of the political and opinion leaders on the liberal Left today.

Responding in the last few days to reports by the UK’s newspaper The Guardian about the phone metadata issue, Feingold had this to say, at the end of a longer response statement: “I hope today’s news will renew a serious conversation about how to protect the country while ensuring that the rights of law-abiding Americans are not violated.”

That statement also distinguishes him from firebaggers – he’s still concerned that there _be_ a balance between protecting the country and protecting rights, and where that is concerned, he wants to have a conversation, not an excommunication.

I miss seeing you in the Senate, Russ. I wish there were more like you.

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