| | Transcript of RAW's interview with Sen. Feingold
 This week, RAW STORY sat down with Sen. Russ Feingold (D-WI) to discuss some of the issues that will face President-elect Obama and the next Congress. The following is a transcript of the discussion.
RAW STORY: First off, what do you see as the No. 1 priority that Congress can do and that the administration can do, moving forward?
Sen. Russ Feingold: Well, this is a vast subject, and the reason it's a vast subject is that so much damage has been done to the rule of law and to what I consider to be the traditional understanding of the Constitution, by the Bush administration. There are many, many steps that have to be taken. If I could pick one thing, that sort of is the foundation for so much of it, though, it's the repudiation of the claims that this administration has made, under Article II of the Constitution, the commander in chief power, that the President can basically do whatever he wants. That if there is a statute like the Foreign Intelligence Surveillance Act in the way, that is very clear in what it says, that is very clear under Justice Jackson's test in the steel case, that they shouldn't go around it. They just take the view they can do whatever they want, and they use it in many contexts. So, in a variety of ways, that doctrine has to be rejected, by executive orders, by legislation, I think even, ideally by the president making a brief statement with regard to it in his inaugural address. That's up to the president. But I think, otherwise -- what I like to say here and what many people who testified at my hearing on this on the rule of law have indicated -- otherwise what could happen here is with the next president, who represents change and a whole different view, if he adopts the same view or something similar to Bush's, it becomes embedded in our constitutional history, and our constitutional law in a way that I think threatens the whole notion of what our system of government is all about.
RS: Beyond making statements and he said he's going to review the executive orders. In terms of accounability ... where do you see the line being drawn towards accountability towards the past and focusing too much going forward?
RF: There is a role for accountability, and there has to be some accountability, or we will have allowed a series of very inappropriate actions go unchallenged. I do not place it ahead of the first two priorities. The first is getting our foreign policy right, especially the fight against those that attacked us on 9/11. And I don't put it ahead of the enormous domestic challenges we have. But, as a third category of activities, whether it be through prosecutions, investigations, oversight, legislation, making sure that nominees that come before us are forced to commit to some of these issues. There's a wide range of things we can do in the context of accountability without getting carried away. I have an op-ed piece in Salon.com that starts the, that's one of the things we can do is put pressure on this administration not to abuse the pardon power, in other words not to let folks off the hook in advance. Now that sets the stage if we can get him to be limited in that and not abuse it, so that we can consider whether criminal or other accountability would be appropriate. I'm not ready to say that it is, but I don't want it taken off the table by presidential, by abuse of the presidential pardon power.
RS: You've talked about and others in Congress have talked about the need to establish maybe an independent commission to look at these things. At the same time Obama has indicated pragmatism is a big ... motivation of his. So how do you, can Congress move forward in terms of creating some sort of commission to look into it, and how much cooperation from Obama is going to be needed in that respect?
RF: Well I'm open to the idea of a commission. FAO Schwarz testified at our hearing very eloquently about the idea. I'm not against it, I might even be for it. But my focus is on what I can do working with the new administration to repair these things apart from any commission. And so, what I'm emphasizing and I'm going to be presenting the president a full report on all the ideas that came before us is here are the things the president can do to reverse the problems by executive order, particularly in the area of torture, and the presumption against classification of documents are a couple of areas he can fix by executive order. There are other areas that can be fixed only by legislation, such as tightening up the standards for national security letters under the USA Patriot Act, such as making sure that we don't have abuse of reverse targeting under the Foreign Intelligence Surveillance Act, you know they really want to get at an American but in a phony way identify a foreign person, that requires legislation. There are other things that can be done as we move through Congress, as a Republican congressman who testified at the hearing said, we can threaten to use the power of the purse, if we need to, to say, 'We're not going to give this to the executive if they don't do that.' But this could be a very friendly administration in terms of solving these problems. I'm going in assuming, because Barack Obama has said all the right things about this, that he's going to want to fix a lot of this stuff on his own. Apparently they're already signaling a desire to fix up the problems with Guantanamo and the Military Commissions. So I don't think waiting, certainly we're not going to wait for an independent commission. Certainly it may be helpful, it may help us look to the future about what can be done in the future to make sure this doesn't happen again and to make a more thorough study of what needs to be done, but we've got a pretty thorough study already. And I've made it my business to be involved in these issues, and I'm doing work with pulling it all together and saying, here. Now, the transition team is already, obviously looking at these things. John Podesta was one of our witnesses, and he was great. So he has a great understanding and sympathy for this. He's worked in the executive branch, but he also sees some of these things as abuses. So this is going to be, I think, a wonderful cooperative effort, where we're going to get action right away. Some of the things are going to get taken care of right away, some of the things are going to take longer, but I'm committed to working on this over the next few years, and I can't imagine a better person than President Obama. He is a constitutional scholar, he taught constitutional law, he was supportive of me on many key votes, relating to the Patriot Act and the Foreign Intelligence Surveillance Act, and he said a lot of really appropriate and courageous things during the campaign on everything from Guantanamo to torture. So it's a good situation. It's one of those, instead of trying to triage and figure out what am I going to try to stop today, there's an opportunity here to say look, there's potential here to fix almost everything. And I'm hoping this president does that and the right people are in place to make that happen -- at this point, we'll see who else he puts in.
RS: President Bush, one of the big complaints about him was that he didn't respond to Congressional inquiry. ... A lot of this didn't come to the fore until Democrats took control in 2006. Now that there's unified control, do you worry that with the same party in power there's going to be less willingness to call President Obama to account, if he does proceed down the same path?
RF: I would hope not. I would hope that if by the extremely unlikley chance that we see the same kind of conduct from this administration, that we treat it the same way. But I don't think that's going to happen. I want to be very clear about that. I am not expecting to ever have to do that. My sense is that the people that President Obama will have around him will want to accommodate Congress. And that's the way it's always been done. In the past there's been some conflicts about subpoenas and they've been worked out informally. This administration wanted to take it to the wall, to go to the courts, and these things haven't been litigated all the way through, and there's good reason for it. Because the courts don't really want to have to pick one side or the other on this, it's always been sort of worked out, through accommodation. I think Obama will return us to that tradition. A lot of our problems with our constitutional system, as great as it is, have to be worked out by accommodation. Because if it comes to our way or the highway, executive versus legislative, you lose the flexibility of the constitution. And this is very true of subpoenas. Another area where I expect a much better situation is the abuse of the intelligence committees, by this administration. Under the National Security Act of 1948, we are entitled and supposed to be getting, the entire Intelligence Committee, a whole series of types of information that we don't get. They don't give it to us. They only give it to the Gang of Four or the Gang of Eight. [Regarding details of the warrantless wiretapping program], that's only one of many examples, but that's the best example. And then, even when they give us information, it's inaccurate or incomplete, and they stonewall us. And they stonewall us on making sure our staffs have access to information that's necessary for them to evaluate it, so that's a whole area that can be quickly remedied by this administration, that is another example of the sort of separation of powers issues that are out there. And it's an area that can be very dramatically and quickly repaired to the benefit of our country and our national security. The administration needs to regard the Congress and in particular the Intelligence Committees as partners in trying to fight our enemies ... and in all the other things we want to do in our foreign policy, instead of a pain in the neck, which is how the Bush administration regard it.
RS: What's your take on Eric Holder?
RF: Everything I've seen so far and with my contacts with him in the past, which have not been extensive, has been positive. He's a very good public servant. He's done distinguished work in the Justice Department already. Easily was confirmed the previous time, by I think a 100 to nothing vote. ... I always am very cautious because you never know what's going to come out, but my sense is this is a very solid choice, and one of the least controversial choices he could have made.
RS: You sit on the Judiciary Committee. When he comes up for his confirmation hearings, assuming this all goes forward, what are you going to ask?
RF: Well that's a big decision, that takes a lot of preparation, so I don't want to commit to anything. I will tell you this, though. There's no question that one of the things that will be important to me and many other senators will be the issue I started this interview with, which is Mr. Holder's view of the role of the powers of the president, particularly under Article II of the constitution and whether they trump Congressional acts. Mr. Gonzales was unable to give me a satisfactory answer to that question, as a result, I voted against him. Because if the attorney general cannot say that the president isn't above the law, basically, I'm not voting for him. And so I'm very confident Holder's answer will be excellent, but that will be one of many areas that I will be taking up.
RS: Getting to some specific policy, FISA was a big fight last summer, and there's been a lot of talk about revisiting it. How soon do you think that can happen?
RF: FISA can be fixed very quickly. The problem that we had under President Bush is that what he would do is present unacceptable packages of legislation that involved anti-terror and other measures that we all supported, but he refused to put in the protections that were needed. And then they would say, well if you're voting against this, then you're voting against the whole bill. That shouldn't be a problem with President Obama because what he can do is put the fixes -- on minimization and on intruding in the privacy of innocent Americans -- right in the bill. And he can say, if you're trying to stop this thing, you're stopping important legislation. So we're in a much, as long as he's willing to do that, he and the administration can put those fixes right in the bill. There may be other things I want to fix. I assume they are going to be more appropriate. Even if they oppose some of the fixes, they're not going to use the same tactics that the Bush administration did, which was basically calling into question people's patriotism, or desire to stop terrorism. I don't think we're going to get that kind of monkey business from this administration. So the whole environment for fixing these things is improved, and I think some of the improvements will be blessed in advance by the administration or even possibly put into some of their legislation. An enormous help.
RS: A lot of these issues that are still important at a basic level don't tend to break through to the public at large. Civil liberties issues, in general, when we've got an economic crisis on our hands, a lot of people have a hard time getting excited about these sorts of issues. How do you move beyond that, and get this into people's consciousness?
RF: That is a problem, because in the middle of this whole GM bailout issue, the issue of the other bailout, and of course the issues of al Qaeda and the issues of our financial disaster. It's very hard sometimes to have this be the front issue, and it won't be. But there are enough people in this country who care about the Constitution who care about the history of our country, who care about the threats that have been made to our Constitution, that there is a constituency and a movement out there that really supports what I'm doing and what I think President Obama will do. I believe they will have a political impact to help us solve these things, even though it's not going to be on the front page. It's on the front page when really awful things are being done. When we fix 'em, maybe it won't get any press at all. That's OK. Because the Constitutional historians and the lawyers will know how to interpret that. But we will have stopped this rogue interpretation of the constitution. I'm not looking for big headlines, I'm just looking to fix it.
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