On Illegal Wiretapping, Bruce is Fein

In all likelihood, few people outside the D.C. Beltway know who Bruce Fein is. Inside the Beltway, however, Fein is a sometimes influential figure. This is one of those times. I first heard about Bruce Fein while working at the Federal Communications Commission as an intern in the mid-1980s. Fein was the FCC's General Counsel at the time, and part of the cadre of right-wing ideologues that Ronald Reagan brought in to run and staff the FCC and other federal agencies. Actually, Fein was first brought into the Department of Justice, serving in the antitrust division (where officials decide whether to allow companies to merge), and then as an associate deputy attorney general. The philosophy of these officials and regulators was deregulation, which in earlier times was known as laissez-faire. As we all learned in junior high school, this theory declares that government should get out of the way of private business, and let markets regulate themselves. It's the same theory practiced by the ideologues running the federal government today, the only difference being that Reagan and his ideologues admitted, rather than hid, what they intended to do.

Another conservative principle practiced by the Reaganites was that the Federal Government should not intrude on the privacy of Americans except in the limited cases spelled out in the Constitution. We heard this principle espoused by Republicans when Bill Clinton was President. It was used to criticize the actions of his attorney General, Janet Reno, in numerous cases, including Ruby Ridge, Waco (where conservatives complained of "jack-booted thugs" kicking down doors), and "leetle" Elian Gonzales. Now, with Republicans in control of all branches of government, these conservative criticisms have fallen silent.

Bruce Fein cuts a distinctive figure. In a city of nerds, he is the nerdiest. He is small and slight, with thick glasses and a high, squeaky voice. Fein is, however, respected as a conservative scholar, an intellectual of the right.

I disagreed with Mr. Fein's philosphy from the start. He has popped up from time to time on the tv news channels or at congressional hearings, espousing his consistently right-wing views. He has served at the American Enterprise Institute, the Heritage Foundation, and as a columnist at the Washington Times, all right-wing institutions. He supported the impeachment of President Bill Clinton. He has supported, and appears on various lists as being available to the media to support, President Bush's Supreme Court nominations, including Samuel Alito.

Then recently, a funny thing happened. When the news broke of President Bush's warrantless NSA wiretapping, and in the months since, Fein has appeared numerous times on television and in print, speaking out forcefully against the wiretapping. For example, in a January 26, 2006, Foxnews.com column, he stated, "once you're targeting an American citizen, then you need a warrant." That is precisely counter to the position taken by Bush and his Attorney General, Alberto Gonzales. More pointedly, he has appeared as a witness at Congressional hearings regarding the warrantless wiretapping, and each time has criticized President Bush sharply. For example:

--at the Democratic House Juciciary Committee hearing on Jan. 20, 2006 (held in the basement of the Rayburn House Office Building because the Republicans who control the committees refuse to hold real oversight hearings on this administration, and refuse to give Democrats even a real committee room to hold their own hearings):

"The founding fathers understood that men were not angels and that "trust me" was not a good enough protection for our civil liberties. . . . One of the reasons why the issue is so critical is that we will be in a state of permanent hostilities against terrorism for our lifetime and for the indefinite future. So the claimed authorities of the President are not temporary. They will not go away. . . . The implausibility of the President's claim [of authority to wiretap U.S. citizens with no warrant from the FISA Court pursuant to the FISA Act of 1978] seems to be self-evident. . . . I don't think anything more needs to be said about the fact that he is violating FISA."

--at the March 31, 2006 Senate Judiciary Committee regarding S. 398, the resolution by Sen. Russ Feingold (D-WI) to Censure President Bush for violating the Constitution and the FISA Act by authorizing the NSA warrantless wiretapping:

"I am grateful to express my support for Senate Resolution 398. . . . President Bush's intent was to keep the program secret from Congress and to avoid political and legal accountability indefinitely. Secrecy of that sort makes checks and balances a farce."

What is so unusual about Fein's statements and his appearances criticizing Bush's actions at Congressional hearings prompted by Democrats is that Fein is not acting as a good Republican foot soldier, supporting every action by President Bush, as do so many of Fein's fellow Republicans. Apparently, Fein really does believe in the rule of law, the separation of powers, and the Constitution, principles that Bush and other Republicans give lip service to but only follow when it suits them. I'm sure I will continue to disagree with Bruce Fein on nearly every other issue, but apparently, on this issue, Fein has the refreshing integrity to act and speak forcefully in accordance with his conservative ideological principles, no matter where the political chips may fall.
And that's just Fein with me.