It's disconcerting to me that we need to keep reiterating for Washington and the Beltway Punditocracy that the American people WANT for us to return to respecting the "rule of law" in this country. Was our vote not enough of a repudiation of the last eight years? Luckily for us, there are a few in DC and the media corps who DO get it. Right at the top of the list: Senator Russ Feingold and Bill Moyers. They sat down this weekend for a conversation on Feingold's hopes for the incoming administration and his desire to raise us out of the moral turpitude of the Bush administration.
Our founding fathers laid down a basic principle -- that we are a nation of laws and that no one, including the president, is above the law. From Guantanamo Bay and warrantless wiretapping to torture and excessive secrecy, the Bush administration has turned this principle on its head. The Constitution states that it and the laws of the United States are "the supreme Law of the Land." Yet, the current administration has claimed unprecedented powers as it has ignored or willfully misinterpreted the laws on the books.
While Americans’ decisive call for change this election was a clear repudiation of the Bush administration’s conduct, failing to act swiftly to reverse the damage could essentially legitimize that conduct and the extreme legal theories on which it was based. That is why it is critically important for President-elect Obama to unequivocally renounce President Bush’s extreme claims of executive authority.
BILL MOYERS: What do you want from the Obama administration?
SENATOR RUSS FEINGOLD: Well, I would like the new president to do exactly what he said he's going to do, first of all. He wants to bring the country together as much as he can. And that doesn't mean, I think, giving up your principles. But I think it does mean saying even though the Democrats have the House and the Senate and the presidency, that we should engage Republicans who are willing to work with us as much as possible. Because the public is so turned off by the fighting and by the sniping that goes on. Those of us who really believe in progressive government have got to portray a government that can work together with as many people as possible.
At the same time, I would like to new president, of course, to stick to the kind of things he campaigned on, such as making sure that we close down Guantanamo, making sure that we do end the war in Iraq in an orderly manner. He should not go away from this to simply look like he's in the middle. And I don't think he's going to do that
BILL MOYERS: I had dinner the other night with Ted Sorensen, who's 80 years old now. He was John F. Kennedy's alter ego, soul mate, the author of so many, with Kennedy, of those great speeches. And I said to him, "Ted, you know, the one thing people remember from Kennedy's inaugural address was I'm — you know it, as you were a young man listening at the time — 'Ask not what your country can do for you, but ask what you can do for your country.'" And I said, "What's the one thing that you think Barack Obama could say that would be the most memorable, the most riveting, and the most compelling, and the most urgent? And he said, echoing Russ Feingold, "Restore the rule of law." You've been talking about this for some time now. Why is that so important for Obama to put it on the marquee early on?
SENATOR RUSS FEINGOLD: Well, of course, the new president, minutes after he's sworn in, in this wonderful moment — it will be cold out there. It will be short speech. But included in the speech, I would hope, would be some attempt by this new, wonderful president to renounce the extreme claims of executive power. To simply renounce these claims that were made by the Bush administration. If he does not say it in some way, at least there, or soon thereafter-
BILL MOYERS: Such as? What do you mean? What claims do you think are most abusive?
SENATOR RUSS FEINGOLD: The most important thing — there are many examples, such as torture issue, Guantanamo, detainees, many other things — the fundamental thing is to get away from this argument that under Article Two of the Constitution, the president can basically look at a clear statute, such as the wiretapping statue, and say, "You know, actually, I can do whatever I want in this. I don't have to follow the clear laws of the Constitution, because under the Commander-in-Chief powers, I can basically do whatever I want." That is essentially the argument, the extreme and dangerous argument that the Bush administration has advanced.
So I would like to see this new president say, "You know, that goes too far. I believe in presidential power. I will protect the prerogatives of the president." But at some point — and I think this is where the Bush administration went too far — they've actually undone the basic balance that our founders believed in.
BILL MOYERS: But he must be heading to the White House concerned that there could be a 9/11 on his watch.
SENATOR RUSS FEINGOLD: Absolutely.
BILL MOYERS: And that he can't be as prudent or as prudish as a constitutional lawyer, as he might have been before 9/11. What would you say to him if he asks you about that? "Russ, I don't want 9/11 to happen on my watch." Bush didn't want it to happen again. He turned to John Ashcroft and said, "John, don't let this happen again." So what would you say to Obama about the balance between the fear he has that Mumbai could happen here, and your concerns, all of our concerns, for the Constitution?
SENATOR RUSS FEINGOLD: Well, he would be absolutely right to have that concern. And I'm on the Foreign Relations Committee-
BILL MOYERS: Right.
SENATOR RUSS FEINGOLD: -and the Intelligence Committee. There's-
BILL MOYERS: And the Judiciary Committee.
SENATOR RUSS FEINGOLD: And judiciary.
BILL MOYERS: Yeah.
SENATOR RUSS FEINGOLD: And these are all — the three committees that really relate to this issue. My top priority is to stop us from being attacked again, is to protect the physical safety of the American people. That's my top priority. That's going to be President Obama's top priority. Though he will do nothing — and I will support nothing — that will undo the ability of us to go after those that we have a reasonable reason to believe are going after us, that are going to harm us. What he will do as president, and what he understands, is you can do that without going after people's library records, where there's absolutely no evidence they've done anything wrong. Or, for example, allowing, as the new Foreign Intelligence Surveillance Act does, the bulk collection of every single international conversation that anyone does, even though there may be no proof at all that anybody's done anything wrong.
Our system of government is based on the belief that we have a rule of law. And although, as Justice Goldberg once said, "The Constitution is not a suicide pact," it is our faith. That doing things under our system of government is not only the right thing to do, but is also the efficacious thing to do, the thing that will actually produce the most result and cause people to feel free. For example, in a minority community in the United States, where they might know somebody in their midst who is potentially a problem. They're going to be a lot more likely to talk to us about that if they believe that their fundamental rights as innocent Americans are being protected. That's the balance we need to have.
BILL MOYERS: What do you think happens if Obama decides that this can't be his top priority? What happens if he doesn't act to reverse what President Bush and Dick Cheney have done?
SENATOR RUSS FEINGOLD: He's in the amazing position of having to have about fifteen top priorities. And nobody envies his job. Look, he's got to deal with the financial issues. He's got to deal with the stimulus issue. He's got to deal with energy and health care. So he doesn't need to sort of make this the number one issue.
Hillary Clinton, when she called me after her appointment as Secretary of State because I'm a member of the Foreign Relations Committee, said, "We have to learn how to walk and chew gum at the same time." Well, that's exactly what President Obama's going to do. He can change these things in the rule of law, relatively quietly. He can get rid of Guantanamo by executive order. He can get rid of the bad torture policies by executive order. He can get rid of the practice of assuming that something's a classified document, and bring it back to what it was under the Clinton administration, where the presumption is in favoring of opening information.