Every member of the United States Senate swears upon taking office to defendthe Constitution. Many fashion themselves as champions of the that cherished document's Bill of Rights and its outline of the nation's freedoms. Even after all the assaults on the American Civil Liberties Union, a few senators still identify as civil libertarians.
But in this era's greatest test of Congressional commitment to defend the Constitution's most vital protections, only one senator stood by his commitment to liberty.
With little debate and under intense leadership pressure to limit dissent, the Senate late Thursday night endorsed the 243-page "Uniting and Strengthening America (USA) Act." The vote came despite the fact that the legislation was thick with measures long sought by law enforcement agencies but always in the past resisted by Congress on civil liberties grounds.
Indeed, with President Bush and Attorney General John Ashcroft pushing for immediate action, and with the FBI warning that new terrorist attacks could be "imminent," the Senate passed the
sweeping anti-terrorism bill by a 96-1 vote.
The lone dissenter was U.S. Sen. Russ Feingold, D-Wi., who had forced the minimal debate that did take place by refusing early in the week to join in a routine "unanimous consent" vote regarding it.
Feingold was not alone in questioning the wisdom of the bill. Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., expressed his "misgivings" about the hastilydrawn legislation, saying Thursday night that he had "acquiesced in some of the administration's proposals because it is important to preserve national unity in this time of crisis and to move the legislative process forward."
But, when Constitutional rights are threatened, Feingold has never been one to acquiesce.
On Thursday night, the lawyer who chairs the Senate Judiciary Committee's subcommittee on the Constitution repeatedly attempted to offer amendments that would have prevented
anti-terrorism measures from being used to infringe upon the liberties of law-abiding Americans.
Feingold wanted to offer basic amendments to the anti-terrorism bill, seeking to:
- eliminate a provision in the bill that would allow police to secretly search suspects' homes
- narrow a provision that would allow federal officials to monitor telephone and Internet usage, using wiretaps and other methods
- keep the FBI from being able to access Americans' personal records
On the Senate floor, Feingold repeatedly raised pragmatic and practical concerns about how the legislation could be bent to purposes that have nothing to do with fighting terrorism.
For instance, he sought to amend a provision aimed at preventing cyber-attacks by terrorists that was designed to allow federal surveillance of anyone who accesses a computer "without
authorization."
Feingold explained that the measure was so broadly written that it could be construed as permitting surveillance office worker who violate corporate policies by making personal Internet purchases on company computers.
At every turn, Feingold's efforts were stymied by Senate Majority Leader Thomas A. Daschle, D-S.D. So determined was Daschle to stifle dissent that Feingold finally asked,
"What have we come to when we don't have either committee or Senate deliberation or amendments on an issue of this importance?"
Feingold has frequently stood alone in the Senate, particularly on Constitutional matters. His dissents have not always made him popular, with fellow senators or with the "rush-to-judgement" crowd that defines so much of America's political discourse.
But the senator who grew up studying the Constitution with his attorney father in Janesville, Wi., has said repeatedly that defending the Bill of Rights is more important to him than
accumulating the political points that come to those who bend with the winds of reaction.
Earlier this month, as he opened a hearing by the Senate Committee on the Judiciary Subcommittee on the Constitution, Federalism & Property Rights on "Protecting Constitutional Freedoms in the Face of Terrorism," Feingold &! gt; explained his position in a statement
that will, eventually, be read as this time's wisest caution. Before diminishing individual liberties, Feingold warned his fellow senators: "We must make sure that as we learn the facts, we do not
allow these attacks to succeed in tempting us in any way to diminish what makes us a great nation. And what makes us a great nation is that this is a country that understands that people have God-given rights and liberties. And we cannot, in our efforts to bring justice, diminish those liberties.
The Wisconsin senator did not mince words about the difficult balance that senators would be asked to strike between security and liberty.
"There is no doubt that if we lived in a police state, it would be easier to catch terrorists", Feingold said. "If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government is entitled to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country where people could be held in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, the government would probably discover and arrest more terrorists or would be terrorists,just as it would find more lawbreakers generally. But that wouldn't be a country in which we would want to live, and it wouldn't be a country for which we could, in good conscience, ask our young people to fight and die. In short,
that country wouldn't be America."
Ultimately, however, Feingold argued that the Senate could defend liberty even in a time of war knowing that it would stand in the truest and greatest American tradition.
"I think it is important to remember that the Constitution was written in 1789 by men who had recently won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote the Constitution and the Bill of Rights to protect individual liberties in times of war as well as in times of peace," the dissenting senator explained.
"There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to bethe legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans during World War II and the injustices perpetrated against German-Americans and Italian-Americans, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King, Jr., during the Vietnam War. We must not allow this piece of our past to become prologue."
On Thursday night, the Senate allowed the past to become prologue.
And it will never be possible for the senators of this time to say they did not know the damage they were doing, because one of their number defended the Constitution in the most difficult of times.
October 11 The Nation - One senator's challenge! to the war on civil liberties
In the darkest 1950s Cold War hysteria, when U.S. Sen. Joe McCarthy, R-Wi. was demanding that Congress toss aside the Constitution in order to hunt down the agents of his "red menace," a move was made by the Republican attorney general of the United States to expand the use of information gathered through wiretapping in cases of espionage and sabotage. The proposal required Senate approval, which seemed assured as the shadow of McCarthyism hung heavy over the Capitol.
One senator, Wayne Morse, a Republican senator from the state of Oregon, stood alone in opposition to increased use of wiretaps on the phone lines of those suspected of subversion. Wiretapping phones was, Morse said, "a police state tactic." When the attorney general
pressed his case before the Senate, Morse countered that, "I am shocked that an attorney general of the United States should believe Gestapo methods are needed in detecting Gestapo elements."
At every turn, and at considerable political cost, the Oregon senator fought the wiretapping plan. And his relentless defense of the right to privacy paid off. As Morse's biographer, Mason Drukman, recalls, "the bill ultimately died in the Judiciary Committee, one of the few measures of its kind to fail during the McCarthy era." Morse's battle against the wiretapping scheme was recalled this week when, in an equally hysterical moment, the Senate was again asked to
massively increase the ability of a Republican attorney general to wiretap phones -- and, now, Internet communications.
Again, one senator stood up to the rush to rip off the Constitution.
U.S. Sen. Russ Feingold's courageous moves to challenge the most irresponsible and unnecessary components of Attorney General John Ashcroft's "anti-terrorism" agenda won him few friends in the Senate. The Wisconsin Democrat broke not just with Republicans but with the overwhelming majority of fellow Senate Democrats -- who were willing to sacrifice fundamental rights on the altar of Ashcroft's ambition.
Ashcroft and his Senate allies have been promoting a grab bag of police-state proposals that will do little to reduce the threat of terrorism, while doing much to increase the threat to civil liberties.
In addition to seeking permission to conduct "roving wiretaps," the Ashcroft proposal was written to permit greatly expanded computer surveillance, and to permit government agents to
secretly search private homes.
Feingold, who chairs the Senate Judiciary Committee's constitution subcommittee, was as blunt as Morse when he stood alone to slow the Senate's rush to judgement. Feingold was not trying to tie the hands of the attorney general in the fight against terrorism. But he was trying to assure that the fight did not become a war on civil liberties.
"It is very important that we give the Department of Justice and the intelligence agencies the tools they need to combat and prevent terrorism," the Wisconsin Democrat said. "But it is also crucial
that civil liberties in this country be preserved; otherwise I'm afraid that terror will win this battle without firing a shot."
Feingold wanted to offer four amendments to the anti-terrorism bill
- eliminating a provision in the bill that would allow police to secretly search suspects' homes,
- narrowing a provision that would allow federal officials to wiretap telephones,
- keeping the FBI from being able to access Americans' personal records and
- clarifying the federal government's a!bility to wiretap computers.
When Senate Democratic leaders refused to allow a debate and prevented Feingold from proposing his wise cautions to the legislation, Feingold pulled the brakes on the process. He refused to provide the "unanimous consent" vote Senate leaders wanted to make possible streamlined consideration of the proposals.
Feingold's bold move forced Senate leaders to permit a broader debate onthe bill.
In these times of lockstep obedience by the Congress to even the worst proposals, Feingold's challenge served as a clarion call to those who would use these remarkable times to undermine America's remarkable liberties.
Proposals to undermine civil liberties may win easy support from the Senate's sunshine patriots. But that surrender has not come without a fight. At least one senator, Russ Feingold, is filling the shoes of Wayne Morse, just as he is filling the halls of the great Senate chamber with the sound of a necessary and genuinely patriotic dissent.
(BRAVO RUSS FEINGOLD).
