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Holder Dodges Questions About Legality of Bush-Era Warrantless Wiretapping

Pressed by Sen. Russ Feingold (D-Wis.) on his view of whether the Bush administration’s warrantless wiretapping program was illegal, Attorney General Eric Holder said the program was “inconsistent” with the Foreign Intelligence Surveillance Act, or FISA, but repeatedly refused to say it was “illegal,” or that President Bush broke the law — despite previous statements he’s made suggesting just that.

Here’s an excerpt:

Feingold: Is there any doubt in your mind that the warrantless wiretapping program was illegal?

Holder: As it was put together at the t time it was certainly unwise … It now exists with congressional approval, so the concerns I addressed in that speech [referring to a speech at the American Constitution Society before he became Attorney General] no longer exist.

Feingold: I asked if it was illegal, not unwise.

Holder: I thought actions the administration had taken were inconsistent with the dictates of FISA. And as a result I thought the policy was an unwise one. The concerns I addressed then have been remedied by Congress.

Feingold: Was it illegal?

Holder: I said it was inconsistent with the dictates of FISA.

Feingold: That sounds awfully mild compared to a very clear statement and very clear principle here … Many people like me believe that if the statute is that explicit then it is unconstitutional for the president and illegal for the president to override the express will of the Congress.

Holder: I think what I’m saying now is consistent with what I’m saying in the speech.

While it seems clear that Holder still thinks the previous administration violated the law (I assume that’s what “inconsistent with the dictates of FISA” means), Holder is obviously reluctant to use the word “illegal,” likely because it suggests that he, as attorney general, might have to prosecute someone for it.

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