Attorney General Eric Holder left little question in anyone’s mind this week that the Obama Administration will not allow a prosecution of unlawful surveillance during the Bush Administration. As with the torture program, the Administration has been avoiding questions about its failure to prosecute the illegal surveillance program. Now, Holder has refused to call the program “illegal” and would only refer to it as “unwise.” I intent to use this as my main defense in my next criminal case: my client’s robbery of a bank was merely “unwise” and a lack of wisdom does not justify prosecution.
Sen. Russ Feingold (D-Wis.) pushed Holder on the violation of the Foreign Intelligence Surveillance Act (FISA):
Feingold: Is there any doubt in your mind that the warrantless wiretapping program was illegal?
Holder: As it was put together at the time it was certainly unwise … It now exists with congressional approval, so the concerns I addressed in that speech [referring to a speech at the American Constitution Society before he became Attorney General] no longer exist.
Feingold: I asked if it was illegal, not unwise.
Holder: I thought actions the administration had taken were inconsistent with the dictates of FISA. And as a result I thought the policy was an unwise one. The concerns I addressed then have been remedied by Congress.
Feingold: Was it illegal?
Holder: I said it was inconsistent with the dictates of FISA.
Feingold: That sounds awfully mild compared to a very clear statement and very clear principle here … Many people like me believe that if the statute is that explicit then it is unconstitutional for the president and illegal for the president to override the express will of the Congress.
Holder: I think what I’m saying now is consistent with what I’m saying in the speech.
The Administration’s use of such doublespeak obviously raises recent memories of Bush Attorneys General Gonzales and Mukasey. It also confirms statements from Bush officials and Senators that, while Obama was running on cracking down on the surveillance and torture programs, he had assured them privately that he would not allowed any prosecutions.
If Gonzales had given Holder’s statement, the blogs would be on fire. Yet, many liberals appear to be treating Obama as conservatives treated Bush — with blind loyalty.