Feingold Spars With Holder Over NSA Legalities

That's a loaded question. The answer is "yes," but the way I asked the question is loaded with two words that appropriately trigger our civil libertarian sensibilities. "Spy" and "Americans."  There are, in fact, about 10 to 12 special access programs that involve the National Security Agency and domestic intelligence collection. These programs have now been fully briefed to Congress, and some of them were revised and made whole, as it were, by Congress in the latter years of the Bush administration. So when Sen. Russ Feingold asked the Attorney General, Eric Holder, about whether warrantless domestic surveillance is illegal, Holder wasn't able to say "yes," even though he -- and candidate Barack Obama -- specifically called "warantless NSA surveillance" "illegal."  Here's Holder, speaking six months ago: "I never thought I would see a president act in direct defiance of federal law by authorizing warantless NSA surveillance of American citizens." It's a check and egg question: Holder now believes that the NSA's programs are legal because Congress says they're legal. Feingold disagrees with Congress's legal interpretation. Read the full exchange between Holder and Feingold after the jump.

FEINGOLD: In a speech to the American Constitutional Society in June 2008,
        you, sir, set the following.  "I never thought that I would see the
        day when a president would act in direct defiance of federal law by
        authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and
        during the campaign said the program was illegal.  Now that you are
        the attorney general, is there any doubt in your mind that the
        warrantless wiretapping program was illegal?

HOLDER:  Well, I think that the warrantless wiretapping program
        as it existed at that point was certainly unwise in that it was put
        together without the approval of Congress and as a result did not have
        all the protections, all the strength that it might have had behind
        it, as -- as I think it now exists with regard to having had
        congressional approval of it.

So I think that the concerns that I expressed in that speech no
        longer exist because of the action that Congress has taken in

FEINGOLD:  But I asked you, Mr. Attorney General, not whether it
        was unwise, but whether you consider it to be an illegal, because
        that's certainly the implication of what you said in the quote I read
        and the explicit statement of the man who is now president of the
        United States.

HOLDER:  Yes, well what I was saying in that speech was that I
        thought the action that the administration had taken was inconsistent
        with the dictates of -- of FISA, and I think I used the word
        "contravention," and as a result I thought that the policy was an
        unwise one.  And I think that the concerns that I expressed then have
        really been remedied by the fact that Congress has now authorized the

FEINGOLD:  But did you think it was illegal?

HOLDER:  Well, I thought that, as I said, it was inconsistent
        with -- with the FISA statute and unwise as a matter of policy.

FEINGOLD:  Has something happened that's changed your opinion
        since your June 2008 statement that would make it hard for you to just
        simply say what the president said, that it's illegal?

HOLDER:  No, I don't think so.  And I don't think what I'm saying
        now is necessarily inconsistent with what I said at the -- at the ACS
        convention or speech that I gave.

FEINGOLD:  Well, it sounds awfully mild compared to some very
        clear statements and a very important principle here, which is not
        only that this has to do with the scope of the FISA law, but the
        underlying constitutional issue that people like mean and many people
        believe that is his statute is -- is that explicit under the third
        test, under Justice Jackson's test, that it is in fact
        unconstitutional for the president and illegal, of course, for the
        president to override the expressed will of -- of the Congress.

HOLDER:  Yes.  Well, as I said, I think I said "contravention
        of," "inconsistent with."  I'm not sure I'd use the term "illegal,"
        and I would adhere to -- I'd adhere to what I said then.  I think what
        I'm saying now is consistent with what I said in the -- in the speech.