Concern that Obama might endorse warrantless wiretapping

Dear Mr. President,

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping. As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal. Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

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 White Paper”), 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.

On June 8, Director of National Intelligence Blair asserted in a speech and in response to a question from a reporter that the warrantless wiretapping program “wasn’t illegal.” His office subsequently clarified that he did not intend to make a legal judgment and that he had meant to convey only that the program was authorized by the president and the Department of Justice. Nonetheless, Director Blair’s remarks – which directly contravene your earlier position, as well as the position of Attorney General Holder – risk conveying to the Intelligence Community, whose job it is to explore legally available surveillance options, that not complying with the Foreign Intelligence Surveillance Act may be such an option. Moreover, his “clarification” highlights the need to formally renounce the legal justification that the “White Paper” provides.

In addition, 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. As a member of the Senate Intelligence Committee who has seen all of the legal justifications, classified and unclassified, that were offered in defense of the warrantless wiretapping program, I strongly disagree with this implication.

As president, you have spoken clearly on the importance of the rule of law and have taken action in a number of areas, such as torture, that have reassured the American people and provided much-needed clarity to the Intelligence Community and the rest of the executive branch. For these reasons, I strongly urge you 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.

Thank you for considering my views on this important matter.

Sincerely,

Russell D. Feingold
UNITED STATES SENATOR

CC: The Honorable Dennis C. Blair
Director of National Intelligence

The Honorable Eric Holder
Attorney General

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