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Did McCain Shift on Warrantless Wiretapping?

June 06, 2008 12:10 PM

What does Sen. John McCain, R-Ariz., think about the President's power to wiretap Americans without a warrant and without a law allowing him to do so?

McCain has seemed to oppose the assertion that the President had the power to conduct such surveillance.

On the day the New York Times first broke the story that the administration was conducting such surveillance, on December 16, 2005, McCain was asked what he thought about it.

"All I know is what I read in the paper, which I know is always totally, absolutely accurate," McCain said sarcastically. "Obviously, we need -- we need to look into that. I asked some questions this morning. But the first I knew of it is was what I saw this morning in the papers."

Asked a reporter: "How would you feel about such a thing theoretically?"

McCain said, "Well, theoretically, I obviously wouldn't like it. But I don't know the extent of it, and I don't know -- I don't know enough about it to really make an informed comment. Ask me again in about a week."

On January 22, 2006, McCain told Fox News' Chris Wallace that his issues were more than the President did this on his own, outside the law, without consulting Congress. "My concerns are that we should have -- the president should come to Congress with a proposal as to how we can best meet these new challenges," McCain said. "Look, everybody's got a BlackBerry now, the e-mails, all of the new technologies for communications, as opposed to, say, 10 or 15 years ago where we all just had a hard line. There are new challenges in the use of telecommunications that, in my view, indicate that we probably need some enhanced powers. But why not just come to Congress? Now Senator Specter is going to have some hearings on it -- come to Congress, tell us what we need, what the president needs, and I am confident that he would get that authority."

Asked Wallace: "But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps."

"You know, I don't think so, but why not come to Congress?" McCain said. "We can sort this all out. I don't think -- I know of no member of Congress, frankly, who, if the administration came and said here's why we need this capability, that they wouldn't get it. And so let's have the hearings. Let's have the administration come to Congress. I think they will get that authority, whatever is reasonable and needed, and increased abilities to monitor communications are clearly in order."

He told CNET last November that "Every effort in this struggle and other efforts must be done according to American principles and the rule of law. When companies provide private records of Americans to the government without proper legal subpoena, warrants, or other legal orders, their heart may be in the right place, but their actions undermine our respect for the law. I am also a strong supporter of protecting the privacy of Americans."

McCain said that the issues raised the Foreign Intelligence Surveillance Act update sponsored by Sen. Jay Rockefeller, D-WV, which provided retroactive immunity for telecommunications firms that complied with the government's warrantless surveillance, "and the events and actions by all parties that preceded it, reach to the core of our principles. They merit careful and deliberate consideration, fact-finding, and exploration of options. That process should be allowed to proceed before drawing conclusions that may prove to be premature. If retroactive immunity passes, it should be done with explicit statements that this is not a blessing, there should be oversight hearings to understand what happened, and Congress should include provisions that ensure that Americans' private records will not be dealt with like that again."

In the Boston Globe in December 2007, Sen. John McCain, R-Ariz., was asked if the president has inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?

"There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications," McCain responded. "Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is."

Responded the reporter, "Okay, so is that a no, in other words, federal statute trumps inherent power in that case, warrantless surveillance?"

"I don't think the president has the right to disobey any law," responded McCain.

**

The position got him in some hot water with conservatives, such as National Review's Andy McCarthy, the former Assistant United States Attorney for the Southern District of New York who led the successful prosecution against Sheik Omar Abdel Rahman and others for the 1993 World Trade Center bombing as well as other planned bombings.

McCarthy wrote "Senator McCain ought to be making himself the face of the solution. He’s not. And it has to be because, if he took on the battle, he’d inevitably remind conservatives (and everyone else) that — as with tax cuts, immigration, the Bush judicial nominations, interrogation policy, etc. — this is yet another issue on which he’s made common cause with the wrong side."

**

On May 23, Wired reported that McCain campaign attorney Chuck Fish said at a conference that "As president, presumptive Republican nominee John McCain would not support immunity for the telecoms that aided the Bush administration's warrantless spying program, unless there were revealing Congressional hearings and heartfelt repentance from those telephone and internet companies."

"'First, we need to be explicit we are not talking about granting indulgences,' Fish said, clarifying that he meant forgiveness must be matched with repentance. 'There would need to be hearings to find out what actually happened and what harms actually occurred,' Fish said, adding that immunity would need to be coupled with clear rules to make sure private records would be protected in future."

The McCain campaign pushed back on this, issuing a statement saying: "John McCain through his votes and statements has shown a commitment to winning the battle against Islamic fundamentalists whose quest is to destroy the United States.  John McCain believes that as part of this battle, companies who assist the government in good faith should not be punished, but he also believes that Congress must put forth clear guidelines for requesting the participation of private companies, provide proper Congressional oversight of any such participation and protect all Americans privacy.

"After careful and deliberate consideration, fact-finding, and exploration of options, John McCain has continued to support renewal of the Foreign Intelligence and Surveillance Act.  The granting of retroactive immunity supports the continuing efforts of participating companies yet should be done with explicit statements that this is not a blessing for future activities."

**

Prompted by that controversy, McCarthy had more questions for the McCain campaign.

On Monday, McCain adviser Doug Holtz-Eakin responded to them, in a letter that assailed the Washington Post's coverage of the story as having been "written with a complete disregard of the facts, misrepresenting my statements to him and Senator McCain’s position on FISA," as well as saying that Chuck Fish made "misstatements" on McCain's position.

Wrote Holtz-Eakin: "Here is the bottom line: Senator McCain supports the FISA modernization bill passed by the Senate without qualification.  He believes no additional steps should be necessary to secure immunity for the telecoms; both the 109th and 110th Congresses have conducted extensive evaluation and examination of this topic and have satisfied the public’s need for appropriate oversight; hearings purportedly designed to ‘get to the bottom of things’ have already occurred; and neither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were  Constitutional and appropriate in the wake of the attacks on September 11, 2001.

"Senator McCain has never stated, nor does he believe that telecoms should only receive retroactive immunity in exchange for congressional testimony about their actions.  We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution.

"As you know, the FISA modernization legislation passed by the Senate earlier this year sets forth clear guidelines authorizing the Attorney General and the Director of National Intelligence to direct a telecom company to immediately provide the government with all information necessary to protect Americans from foreign threats and outlines legal procedures with respect to any challenges of this authority.  Additionally, the bill requires the Attorney General and the Director to assess compliance of the intelligence community with minimization techniques.  These types of modernization provisions placed in the bill are the “clear guidelines” and “vetting processes” I stated that Senator McCain, like a majority of his colleagues, supports. 

"Senator McCain believes that the Democrats’ reckless delay in passing a FISA modernization bill is unnecessarily risking our national security and dangerously restricts the vital efforts of our  intelligence community."

**

McCarthy was heartened by the news, writing: "In my humble opinion, the McCain camp's response is extremely significant in that it not only full-throatedly supports the surveillance reform being blocked by House Democrats; it marks a welcome evolution on the Senator's thinking about executive power — bringing him more into line with prior administrations and influential federal court decisions which concede presidential power under Article II of the Constitution to order warrantless surveillance when the United States is threatened."

The New York Times this morning noted that what McCarthy refers to as "a welcome evolution" by McCain on the issue could be seen as a flip-flop, since "legal specialists said the letter contrasted with statements Mr. McCain previously made about the limits of presidential power."

The McCain campaign denies that anything has changed. Reading all of the above, it seems clear that McCain's big issue with what the president did is not that he thought the program was wrong, but that he thought the president didn't have the authority to do it without congressional authorization. But certainly the comments from Mr. Fish muddy the waters and the rhetoric from Holtz-Eakin assailing the ACLU and "trial lawyers" is misrepresentative of McCain's earlier concerns. And even allies on this issue such as Mr. McCarthy see an "evolution." What's the difference between that and a reversal? An answer from the McCain campaign will be posted momentarily.

- jpt

UPDATE: A response from McCain campaign spox Tucker Bounds: “John McCain continues to believe, as he always has, that every President has the obligation to obey and enforce laws passed by Congress and signed by the President.  His position has not changed.  This is precisely why he believes that existing FISA laws need to be modernized to provide in statute clear guidance for future actions that may need to be taken, therefore making it less likely that any President would need to rely solely on constitutional authority to protect this country. 

"A number of courts, including the Foreign Intelligence Surveillance Court of Review, have recognized the President’s constitutional authority to conduct warrant-less surveillance for foreign intelligence purposes, that is, foreign-based communications and phone calls.  The courts’ findings supported the Bush Administration’s efforts in the wake of September 11, 2001, and the McCain campaign has made statements referencing these findings.”

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