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Feingold Asks Obama to Clarify Position on Warrantless Wiretapping

Responding to the controversial assertion by Director of National Intelligence Dennis Blair on June 8 that warrantless wiretapping “wasn’t illegal,” Senator Russ Feingold (D-Wis.) today sent a letter to President Obama asking him to make clear that he is not claiming that extraordinary executive authority to disregard the Foreign Intelligence Surveillance Act, or FISA.

“As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal,” writes Feingold. “Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.”

Feingold continues:

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 WhitePaper “), 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.

Feingold notes that in addition to Blair’s comments,

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.

In fact, although Barack Obama the Senator and presidential candidate repeatedly spoke against warrantless wiretapping as practiced by the NSA under President George W. Bush, as president, he has not been clear on the issue. He’s sought to stymie at least one case involving claims of warrantless wiretapping on state secrets grounds, and urged a judge to dismiss a slew of lawsuits against telecom companies who allegedly cooperated with the Bush administration in the warrantless wiretapping program.

Recent reports also reveal that the NSA’s surveillance program “in recent months” exceeded legal limits, and pending lawsuits claim that warrantless wiretapping is continuing under Obama’s watch.

In his letter sent today, Feingold urged President Obama “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.”

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