Friday, June 06, 2008


McCain: Illegal Spying? I'm In!

by mcjoan

Both Greenwald and Ryan Singel have important posts on McCain and FISA. He's been back and forth all over the issue since it's become an issue, but now that he's running for Bush's third term, he's decided he'd better go all in, not only on warrantless wiretapping, but on the theory of a unitary executive to back it up.

But let's just take a little walk back in time, to November, 2007 when McCain told CNET news:

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....

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.

You apparently can't simultaneously be the Republican nominee for President and respect the law. Because (after much back and forth) now McCain is with Bush all the way:

Mr. McCain believes that "neither the administration nor the telecoms need apologize for actions that most people, except for the A.C.L.U. and trial lawyers, understand were constitutional and appropriate in the wake of the attacks on Sept. 11, 2001," Mr. Holtz-Eakin wrote.

And if Mr. McCain is elected president, Mr. Holtz-Eakin added, he would do everything he could to prevent terrorist attacks, "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."

The author of this NYT story, Charles Savage, interestingly enough had an interview with John McCain six months ago and the topic of warrantless wiretaps came up then, too.

Mr. McCain was asked whether he believed that the president had constitutional power to conduct surveillance on American soil for national security purposes without a warrant, regardless of federal statutes.

He replied: "There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications. 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."

Following up, the interviewer asked whether Mr. McCain was saying a statute trumped a president’s powers as commander in chief when it came to a surveillance law. "I don’t think the president has the right to disobey any law," Mr. McCain replied.

David Golove, a New York University law professor who specializes in executive power issues, said that while the language used by Mr. McCain in his answers six months ago was imprecise, the recent statement by Mr. Holtz-Eakin "seems to contradict precisely what he said earlier."

McCain's ever moving position on FISA and telco amnesty might just be influenced by his presidential campaign. More precisely, by the staff and advisers on his campaign, which is absolutely lousy with lobbyists for the telcos, many of whom have and continue to lobby on telco amnesty. Seriously, USA Today has reported that 23 out of 66 current or former lobbyists working on or with the campaign represented telcos. And some of the most prominent names on his campaign now--Charlie Black, Wayne Berman, Dan Coats, as well as a bunch of fundraisers--John Green, Bryan Cunningham, Kirk Blalock, Kirsten Chadwick--have lobbied (or continue to lobby) in FISA on behalf of the telcos.

Hmmmm..... That seems like a tailor made issue that the Democratic nominee for President could use against his opponent for the next five months. You've got a threefer in this one: McCain really is seeking Bush's third term, down to the unitary executive; yet another massive flip-flop ("I was for the Constitution before I was against it, really!"); and the fact that he and his campaign are nothing more than partially owned subsidiaries of the telcos. What more could Obama ask for in one issue?

That is, if the brainiac Democrats in Congress don't blow it by signing off on some Republican "compromise" and pushing telco amnesty through this summer. Hopefully they'll recognize that it's not just bloggers yammering about this, that now both the Washington Post and the New York Times smell blood in the water when it comes to McCain and FISA. Hopefully, they'll be smart enough politicians to see opportunity staring them in the face.

And hopefully Senator Obama will recognize this opportunity as well, and put the kabash on any deals with Republicans over FISA. Because he's the party leader now. He can do that.


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