Jewish World Review Nov. 2, 2001 / 16 Mar-Cheshvan, 5762

Jules Witcover

Jules Witcover
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Feingold's complaint -- WHEN Congress overwhelmingly approved the anti-terrorist bill vigorously advocated by Attorney General John Ashcroft last week, the only senator to vote against it was Russell Feingold of Wisconsin. He is the same Democrat who earlier this year provided the vote that sent Ashcroft's nomination to the Senate floor, where it subsequently was confirmed.

Feingold said at the time that in spite of serious reservations about Ashcroft's views on civil liberties and other matters, he was extending "an olive branch" to Senate Republicans who in Feingold's opinion had treated Democratic nominees shabbily during the Clinton administration.

Now he is concerned that the anti-terrorist legislation has dusted off an old Ashcroft and FBI "wish list" of previously sought powers he believes can undermine the rights of all Americans, unless carefully monitored against freewheeling application by the conservative attorney general.

But he doesn't blame Ashcroft. "I have no doubt that regardless of who the attorney general was, we would have gotten the same bill," he says, because "it was driven by the White House. It was the bill the president wanted." Feingold says he is particularly concerned over new powers to the FBI to search citizens' homes without their knowledge, and similarly to scrutinize medical and other personal records.

While other Democratic senators share Feingold's worries that Ashcroft's Justice Department and FBI may use the new powers in ways detrimental to the constitutional rights of nonterrorists, he says, some have been assuaged by the fact the law includes a sunset provision. That means that after four years it will expire unless Congress extends it.

"It doesn't comfort me," Feingold says, to say that constitutional rights can be deprived for only a limited period of time. Japanese-Americans who were interned in camps during World War II took no comfort, he adds, from the fact that they lost their rights only for the duration of the war.

Feingold says the administration "is taking advantage of the situation" not only to push its "wish list" in this matter but also in its renewed bid for more tax cuts, fast-track authority on trade agreements and other targets of opportunity in the current climate of patriotic support of the president.

The maverick Wisconsin second-termer did join all other senators in supporting the Sept. 14 resolution authorizing the president to "use all necessary and appropriate force" against perpetrators of the Sept. 11 attacks and those who aided them. He did so, he says, because it was carefully tailored to "fighting terrorism of global reach."

Feingold says, however, that he remains wary of such presidential declarations in lieu of the constitutional requirement that Congress declare war, although he considers that this one is in keeping with the War Powers Act of 1973, which calls for consultation with Congress.

That act also requires that once a president informs Congress that American forces have been committed, he has only 60 to 90 days to keep those forces deployed without going back to Congress either for a declaration of war or continuing authority to deploy them. Noting that the 60 days will be up on Nov. 13, Feingold says he may look into whether President Bush should be asked to come back for that continuing authority if hostilities are still going on by that date.

Tim Edgar, legislative counsel for the American Civil Liberties Union, says his organization is most concerned that President Bush act within the specific targeting of the Sept. 11 perpetrators. Should he decide to widen the war, Edgar says, he should return to Congress for authorization so that one man is not able to unleash, in Thomas Jefferson's phrase, "the dog of war."

The War Powers Act, however, has been repeatedly disregarded by past presidents as an illegal, or at least unenforceable, encumbrance to the chief executive's powers as commander-in-chief. Enacted in the wake of Lyndon Johnson's escalation of the undeclared war in Vietnam and Richard Nixon's incursion into Cambodia, the act has been given short shrift by presidents from Jimmy Carter to Bill Clinton in their commitments of American troops in hostile environments abroad. That's why Russ Feingold is watchful.

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