In the Snowden case, Bruce Fein finds the apex of a long Washington legal career


Bruce Fein is representing Ed Snowden’s father, Lon Snowden. Fein is a lawyer who specializes in constitutional and international law. He has written numerous articles on constitutional issues for The Washington Times, Slate.com, The New York Times and Legal Times. (Marvin Joseph/The Washington Post)
August 11, 2013

There’s a slight dimple of a smile on Bruce Fein’s choirboy face, his large hands clasped reverentially in mock Washington humility, his lips pursing as the television camera pans toward him, forming that look of assumed gravitas common to those about to share information of great import. Fein’s client, Lon Snowden, the father of fugitive ex-NSA contractor Edward Snowden, is beside him, looking dour and uncomfortable, although he speaks with an eloquence of someone truly pained by his situation. ¶ Fein, on the other hand — whose representation of Snowden has thrust him into the spotlight of national television and is arguably the apex of his 41-year Washington legal career — is having the time of his life. Indeed, he can barely contain himself during a recent round of network interviews. “I need to interject here,” he insists to Jake Tapper of CNN’s “The Lead.” “I have got to interject, Matt,” he tells the “Today” show’s Matt Lauer for a second time — and later interjects again. He is cut off by CNN’s Anderson Cooper: “Actually, Bruce, before you jump in, because I know you’re about to jump in . . . ”

Bruce Fein, 66, Berkeley undergrad, Harvard Law, a member of that first class of Ronald Reagan acolytes who populated the Department of Justice starting in 1981 (and whose numbers would include, among others, the future chief justice of the United States), is a classic Washington type — a bit nerdy, self-involved, self-important and very, very smart. Fein served as general counsel at the Federal Communications Commission at a time of intense deregulation and has spent virtually every day since he left the FCC on a singular quest: to promote what he considers “a fundamental premise of who we are as a people — the right to be left alone.” It is our government, he adds, “that has to justify why it’s disturbing my right to be left alone.”

‘A true believer’

With his reedy voice and large, formless glasses — the fashion-resistant model that has been around since the 1970s and allows for the widest field of vision — he’s ubiquitous at Capitol Hill hearings, having testified countless times. (“Probably 100 or whatever, I don’t count. It’s been a lot of times,” he says.) For three decades, his impassioned, fusty and often overwrought prose has appeared in scores of journals and newspapers and Web sites, from the Harvard Law Review to USA Today, from the conservative Washington Times to the liberal Huffington Post.

Fein is an originalist, a believer in a well-established though decidedly minority interpretation of American legal thought that essentially says: Let’s keep our eye on the original values and intentions of our founding fathers. And when events such as the Sept. 11, 2001, attacks occur, originalists believe, it’s even more important that those values remain ascendant. “The individual is the center of the Constitution’s universe,” Fein told a House Judiciary Committee hearing two years ago in testimony that railed against the Patriot Act, which significantly strengthened the government’s surveillance powers in the name of fighting terrorism. “The Constitution salutes freedom and citizen sovereignty over absolute safety and citizen vassalage,” Fein said. “The Patriot Act turns that hierarchy on its head.”

Fein’s obsession with individual rights and due process — which he calls “the most important idea in the history of civilization” because it means “I need to listen to other people” — inspires radical agreement and disagreement, often with the same person. “Bruce Fein was and remains as a true believer to what many saw in Ronald Reagan: He viewed limited government in direct correlation to individual rights — and we have that in common,” says George Washington University law professor Jonathan Turley, who over the years has both faced off against and embraced Fein, whom he calls the “ultimate strange bedfellow.”

Lon Snowden says he does not believe his son will ever get fair treatment from the U.S. government for revealing intelligence secrets. He sat down with the Post's Jerry Markon to defend to his son. (Lee Powell/The Washington Post)

The Edward Snowden affair is tailor-made for Fein, who was recommended to Lon Snowden by a mutual contact. “One of the first things Lon said was that he thought his son would subscribe to the views and philosophy I’ve expressed,” said Fein in an interview last week in his Foggy Bottom apartment, books and open boxes strewn about the unadorned one-bedroom space like a college freshman’s dorm room. Snowden’s revelations about a ­top-secret government spy program known as PRISM, which collects data from U.S. phone calls and monitors private Web traffic, are considered among the worst security breaches ever at the country’s National Security Agency.

Many say Snowden’s actions were blatantly treasonous, but Fein disagrees. “If government by the consent of the governed means you get to know what your government is doing in terms of policy — though not necessarily how you’re deploying your troops on the ground because that could aid the enemy” — then “in my view, even if [PRISM] was a spectacular success, we the people get to decide whether we think success is worth the invasion [of privacy] or the crushing of the right to be left alone. Maybe we will, and maybe we won’t. But we the people are sovereign.”

Outside the lines

A Bruce Fein could really exist, much less flourish, only in Washington, where interminable policy debates provide steady work for professional polemicists. But Fein remains an outsider, a legal monk, really, whose monastery, if it existed, would be the Order of the Founding Fathers. (He is not religious and says the only time he’s been in a synagogue was to play in a Jewish basketball league.) He is known for speaking his mind, much to the delight of journalists — “It seems Judge Bork’s ambition exceeds his integrity,” he told one reporter after Robert Bork repeatedly backed away from his more controversial views during his 1987 Supreme Court confirmation hearing — and the dismay of mainstream Republicans, especially after revelations of President George W. Bush’s terrorist surveillance program led Fein to call for the president’s impeachment.

Fein asserts — and Mattie Fein, his sometimes business partner and wife (though in name only) confirms — that he does not go to parties, drink anything stronger than Perrier, smoke, do fundraisers or own a car. He has run one marathon and generally tries to do 35 to 40 miles a week on the treadmill — in total silence. “Literally, and I don’t say this boasting, I work on Christmas,” Fein said. When he asked Mattie out in 2003, his first date in the 20-some years since his first marriage had fallen apart, he put it this way: “Would you like to partake of some squandering of time?”

Mattie Fein, 47, a onetime CNBC producer, ran unsuccessfully for Congress in 2010 against California Democrat Jane Harman. The Feins were married in 2004. The two long ago began living separate lives, she says, but remain close friends and are working together on the Snowden case, with Mattie handling press. Bruce Fein is estranged from his two adult sons — Mattie Fein says the couple’s marriage was the cause, and her husband does not disagree, although he does not wish to discuss the matter. Bruce Fein’s only daughter, a college freshman at the time, died of an arterial cluster just over a decade ago.

Fein came to Washington in 1973 after a federal clerkship and joined the Justice Department’s Office of Legal Counsel just when Watergate was starting to blow wide open. His first task, he recalled, was to draft a 100-page memorandum on what constituted an impeachable offense. “There was no law school class about that,” he recalls. When Reagan took office in 1981, Fein was appointed assistant deputy attorney general, reporting directly to the department’s No. 2, Ed Schmaltz. “It was a giddy time for those of us who believed in the ‘Reagan revolution,’ which we didn’t think was an exaggeration,” said Chuck Cooper, who was at Justice’s Civil Rights Division at the time and is now a lawyer at the Washington firm Cooper & Kirk.

Fein helped persuade the department to reverse course in the infamous Bob Jones University case and no longer support the IRS, which had revoked the university’s tax-free status because it prohibited interracial dating. “I totally abhor any form of racial discrimination,” Fein said. But he added that the issue in the Bob Jones case was whether the IRS could impute the notion of “compelling public policy” in the absence of any specific statutory language about racial discrimination. The Supreme Court in 1983 ruled 8 to 1 to uphold the IRS decision.

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Fein also played a key role in institutionalizing a more formal screening process for federal judgeships, carefully evaluating what potential judges — many of them former law professors — had written in light of the type of decisions they might produce. Among the collection of conservative luminaries appointed to the federal bench during Fein’s time at Justice were Bork, Richard Posner, Antonin Scalia, Alex Kozinsky and Ralph Winter.

Even at the FCC, Fein was able to advance his “constitutionalist” approach, playing a key role in the eventual revocation of the Fairness Doctrine, a long-standing rule that required broadcasters to present both sides of controversial issues. “Again, it was this sickening government paternalism,” explains Fein, “the epitome of the sword of Damocles hanging over every broadcaster. It was revoked. It doesn’t exist anymore.”

Controversial clients

Fein was a visiting fellow at the Heritage Institute and did a stint as a researcher on the joint House and Senate committee on the Iran-Contra affair; his boss was then-Rep. Dick Cheney. Many of his former colleagues at Justice would later forge influential careers on the bench — most notably Chief Justice John G. Roberts Jr. — become law professors, litigation partners or lobbyists at powerful law firms. One, Rudy Giuliani, became mayor of New York; another, Kenneth Starr, became an independent counsel whose investigation of President Bill Clinton led to Clinton’s impeachment. Fein, though, has remained a lone wolf, with an occasional partner and a client base over the years as eclectic as the publications for which he has written.

He has worked for Mozambique’s former notorious guerrilla opposition RENAMO, as well as for the government of Sudan, which even in the 1990s was barred from receiving U.S. aid because of its abysmal human rights record. Foreign Agents Registration Act records show that the Sudanese Embassy in Washington paid Fein a total of $100,000 over a 17-month period beginning in July 1996.

“Sudan was an effort to try to get the U.S. to come and visit because there was suspicion at the time that there was slavery, and there were arguments about human rights violations,” Fein says. “I remember drafting a letter for the president of Sudan [to the U.S. government] saying, ‘Why don’t you send your people over here, and we’ll do joint investigations?’ I’m not trying to defend the country. Sudan had huge warts, even at that time,” he says. “But the U.S. government just didn’t respond at all. It was just total icy silence.”

More recently, Fein waded into the murky waters of the Turkish-Armenian genocide dispute, filing a defamation lawsuit in 2008 against the Southern Poverty Law Center after it accused University of Massachusetts professor emeritus Guenter Lewy of being a “Turkish agent” when he published a book disputing Armenian claims of genocide by the Ottoman Empire during World War I. Fein and Washington lawyer David Saltzman, whose firm represents the Turkish Embassy here, won a public retraction of the claim.

This summer, Fein spent two weeks in Lagos, Nigeria, lecturing to members of the Central Bank of Nigeria in anti-money laundering and counter-financing of terrorism. He’s working on a case involving musician Billy Preston’s estate, as well a First Amendment claim in Little Falls, Minn., where a 58-year old grandmother says she is being unfairly targeted by the city simply because it doesn’t like her yard signs supporting the Occupy Wall Street movement.

It’s Lon Snowden, however, who is by far the most significant client, and whom Fein notes he’s representing for free. On Sunday, Fein told the ABC News program “This Week” that he and Snowden have Russian visas and are ready to fly to Moscow “very soon” so that they can talk to Edward Snowden in person. “I’m doing this because I think it’s best for the country,” Fein says. “In the spirit of Tom Paine, a patriot saves his country from his government.”

Goldman is a freelance writer.

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