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
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.