The Lone Patriot

By Robert Kuttner
The Boston Globe

Saturday 18 February 18, 2006

The other day, editors of the American Prospect interviewed the Senate Democratic leader, Harry Reid. I pressed Reid about the difficulty that Democrats were having mounting a unified opposition to President Bush, even on issues such as the badly bungled Medicare prescription drug program.

Reid did not respond directly on privatized Medicare drugs, where his caucus is divided. Instead, the minority leader invoked the bravery of Senator Russ Feingold of Wisconsin.

Reid said, "An example of how people really appreciate your standing up for what you believe is Russ Feingold, the only person [in the Senate] to vote against the Patriot Act - the only person. The Republicans in 2004 spent tons of money going after him on that one issue, and it didn't matter because people believed that Russ Feingold did it because he thought it was the right thing to do." Indeed, last year, when John Kerry carried Wisconsin by a bare 12,000 votes, Feingold sailed to reelection by more than 330,000 votes. "I so admire Russ Feingold," Reid added.

The vote for the so-called Patriot Act, giving the executive branch unprecedented investigative powers to override traditional liberties, came in the hysterical wake of 9/11. Congress at least had the wit to insist that the act be reviewed after five years.

Now, the Patriot Act is about to be extended, with only the most trivial sops to civil liberties. And guess who is all alone, yet again?

Senator Russ Feingold.

When Democrats agreed to support an extension making only superficial changes, Feingold vowed to filibuster. On Thursday, the Senate voted to end debate. Exactly two other senators voted with Feingold. One was octogenarian Robert Byrd of West Virginia, who carries a copy of the Constitution around in his pocket. The other was the flinty former Republican Jim Jeffords of Vermont, the Senate's lone independent.

Reid, who so admires Feingold's courage, left Feingold all alone yet again.

The Patriot Act is a long-standing wish list on the part of prosecutors and spymasters who would sacrifice liberties to needless short-cuts: warrantless wiretaps; "sneak and peak" searches where the target doesn't learn of the search; gag orders on recipients who are compelled to produce confidential medical and business records; fishing expeditions in libraries; and more mischief that violates the intent of the Fourth Amendment prohibition against unreasonable searches and seizures, making Americans less free but no more secure against terrorist attack.

But think of all we've learned since 9/11. For starters, we learned that 9/11 happened mainly because the administration was otherwise engaged. As the testimony of Richard Clarke and others made clear, the administration was obsessed with Iraq, and spent Bush's first nine months ignoring escalating warnings of an imminent Al Qaeda attack. Having the Patriot Act on the books pre-9/11 wouldn't have helped, given the administration's failure to connect dots that were known under existing surveillance law.

Most pointedly, we've learned that Bush feels free to disregard what Congress permits. The original Foreign Intelligence Surveillance Act of 1978 gave the government expansive surveillance powers for national security purposes, but retained higher standards of procedure and proof for intelligence data used in prosecutions.

The Patriot Act blew a big hole in those protections. But even so, President Bush, in declaring that he can do whatever he wishes as commander in chief, including secret and illegal taps of Americans, doesn't feel constrained by either act. Presumably this war power could also include mass round-ups, permanent detentions, summary executions, anything at all.

What better moment to reign in Bush's extra-constitutional power-grab than when the Patriot Act is up for review? But, no. That might seem "un-Patriotic" (get it?). As Feingold declared,"If Democrats aren't going to stand up to an executive who disdains the other branches of government and doesn't worry about trampling on the rights of innocent Americans, what do we stand for?"

Good question. As Harry Reid correctly observes, Bush can wave the bloody shirt of 9/11 all he wants; voters don't punish legislators such as Feingold who stand up for principle. One such principle, surely, is that this nation must remain a constitutional democracy. That notion is also good politics. It has been since 1789.

Feingold's courage needs to be honored, not by celebrating him as a brave loner, but by following his leadership. Legislators of both parties need to preserve our liberties, despite ominous claims of permanent war and unchecked power. If not, God save the Republic.

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Robert Kuttner is co-editor of The American Prospect. His column appears regularly in the Globe.