Pressed by Sen. Russ Feingold (D-Wis.) on his view of whether the Bush administration’s warrantless wiretapping program was illegal, Attorney General Eric Holder said the program was "unwise" and "inconsistent" with the Foreign Intelligence Surveillance Act (FISA)--but repeatedly and painstakingly refused to call it "illegal," which it was. During the campaign, Obama promised,

the President's illegal program of warrantless surveillance will be over.

Holder has previously said that warrantless surveillance is illegal. But the tortured exchange yesterday speaks more loudly than my paraphrasing:

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.

(If you want the full affect, you can watch it here: http://judiciary.senate.gov/...)

In English, this tortured exchange signals that the Justice Department will not prosecute anyone for one of the biggest crimes in the Bush administration: warrantless wiretapping. Ironically, this statement occurred on the same day that we learned from the New York Times' Eric Lichtblau and James Risen (the reporters who initially broke the electronic eavesdripping scandal) that the NSA overcollected American's e-mails in the millions.

Holder said he had not read the article, which is hard to believe, given that most of the senators on the Judiciary Committee had, and three of them questioned Holder on it. The NSA's spying on domestic e-mail is far more extensive than previously thought, even under the new, relaxed FISA law enacted last year gave the NSA greater leeway to collect our private communications as long as it was only the "incidental byproduct" of investigating people "reasonably believed" to be overseas.

That there is virtually no coverage of this in the MSM is the mildest of my disappointments on this issue.