Since his election, President Obama has angered some opponents of his predecessor's use of executive power in the arena of national security. His administration's invocation of the state secrets privilege, his decision not to release detainee abuse photos, and his use of military tribunals to try terrorism suspects have all sparked the ire of the civil liberties community.

Today, Sen. Russ Feingold (D-WI) resurrected an issue that posed the same problem for Obama during the 2008 campaign: government wiretapping.

After public outcry over President Bush's warrantless surveillance program, Obama backed a measure to address executive wiretapping powers in Congress last summer--a bill (which passed and was signed into law) that broadened government authority and granted immunity to telecommunications companies that participated in Bush's program. This had the same liberals and civil libertarians upset with Obama back then.

Today, Feingold, troubled by Director of National Intelligence Dennis Blair's comment last week that Bush's program "wasn't illegal," has asked Obama to repudiate the legal rationale behind Bush's wiretapping program--a bit like he did with interrogations, when, in an initial act in January, Obama issued a memo declaring null the Bush-era opinions supporting harsh interrogation.

This is less about current wiretapping activities--the legalities of wiretapping were codified in the 2008 law--and more about the interpretation of executive power. Feingold wants Obama to reject the theory that executive power allowed Bush to carry out warrantless wiretapping, without consultation of Congress or the courts.

See the letter Feingold sent to Obama below:

June 13, 2009

The President
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C.  20500

Dear Mr. President,

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping.  As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal.  Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

It is my hope that you will formally confirm this position as president, which is why I sent you a letter on April 29, 2009, urging your administration to withdraw the unclassified and highly flawed January 19, 2006, Department of Justice Legal Authorities Supporting the Activities of the National Security Agency Described by the President ("NSA Legal Authorities White Paper"), as well as to withdraw and declassify any other memoranda providing legal justifications for the program.  Particularly in light of two recent events, I am concerned that failure to take these steps may be construed by those who work for you as an indication that these justifications were and remain valid.  

On June 8, Director of National Intelligence Blair asserted in a speech and in response to a question from a reporter that the warrantless wiretapping program "wasn't illegal."  His office subsequently clarified that he did not intend to make a legal judgment and that he had meant to convey only that the program was authorized by the president and the Department of Justice.  Nonetheless, Director Blair's remarks - which directly contravene your earlier position, as well as the position of Attorney General Holder - risk conveying to the Intelligence Community, whose job it is to explore legally available surveillance options, that not complying with the Foreign Intelligence Surveillance Act may be such an option.  Moreover, his "clarification" highlights the need to formally renounce the legal justification that the "White Paper" provides.  

In addition, I asked your nominee to be General Counsel for the Director of National Intelligence, whether, based on the "White Paper" and other public sources, he believed that the warrantless wiretapping program was legal.  His written response to my question, which was presumably vetted by your administration, indicated that, because the program was classified, he could not offer an opinion.  Should he be confirmed, this position, too, risks conveying to the Intelligence Community that there may be classified justifications for not complying with FISA.  As a member of the Senate Intelligence Committee who has seen all of the legal justifications, classified and unclassified, that were offered in defense of the warrantless wiretapping program, I strongly disagree with this implication.  

As president, you have spoken clearly on the importance of the rule of law and have taken action in a number of areas, such as torture, that have reassured the American people and provided much-needed clarity to the Intelligence Community and the rest of the executive branch.  For these reasons, I strongly urge you to formally renounce the legal arguments behind the previous administration's warrantless wiretapping and to demonstrate again your clear commitment to the rule of law in this area.

Thank you for considering my views on this important matter.

Sincerely,


Russell D. Feingold
UNITED STATES SENATOR


CC:              The Honorable Dennis C. Blair
                    Director of National Intelligence
 
                    The Honorable Eric Holder
                    Attorney General

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.