Russ Feingold Tried to Warn Us About Section 215 of the Patriot Act

In September 2009, Russ Feingold, the only senator to vote against the Patriot Act when it was first proposed, released a statement expressing concern that critical information about the way it was being used hadn't been released, "information that I believe would have a significant impact on the debate." He singled out "information about the use of Section 215 orders that I believe Congress and the American people deserve to know," adding that "before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used." (Section 215 allows the government to use the Foreign Intelligence Surveillance Court to compel businesses to turn over certain information.) Congress ought to add limits to the bill "that allow agents to actively pursue criminals, terrorists and spies, but that also protect the privacy of innocent Americans," Feingold said, or else more privacy abuses would happen.

On October 1, 2009, the Wisconsin senator issued an additional warning about Section 215 during a Senate Judiciary hearing: "Mr. Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting."

Statements like these are worth raising now in part because Wisconsin's Tea Party voters ought to understand that, when they replaced Feingold with Senator Ron Johnson in 2010, they traded a civil-libertarian prescient in the abuses he anticipated with someone who is worthless on this issue. These bygone quotes matter to the rest of us insofar as they illustrate something that Julian Sanchez observed about secretive intelligence programs and oversight. One reason it often proves insufficient, Sanchez explained, is that "when legislators do become aware of problems, their ability to mobilize support for reform is hampered by their own inability to go public with their concerns."

Sanchez, a brilliant guy who has studied these issues closely for years, observed in a separate item that, despite listening to Feingold's warnings as he made them -- along with warnings by Senators Ron Wyden and Mark Udall -- he was surprised by what Edward Snowden has revealed. "When I contemplated the most paranoid scenarios for how the government might use the Patriot Act's §215 'business record' authority that still seemed realistic, I did not imagine they would use it to routinely collect all Americans' phone (and perhaps Internet) records for years at a time," he wrote at Cato. "I thought perhaps in a panic they might do something similar for an entire city over the course of a month. Clearly, I was thinking too small."

Last week in Wisconsin, speaking to an audience of Democrats, Feingold said, "I don't come to you tonight as an officeholder. I don't come to you tonight as a candidate -- at least not in 2013, 2014, or 2015." In 2016, the man who beat him, Johnson, is up for reelection. If Feingold managed to retake his seat, he would be a welcome presence in the Senate for civil libertarians (despite his ill-conceived campaign-finance bill that did nothing to make the system less corrupt).

Senators Rand Paul, Wyden, and others could use the help.