[Infowarrior] - McCain: I'd Spy on Americans Secretly, Too

[Richard Forno]

McCain: I'd Spy on Americans Secretly, Too
By Ryan Singel EmailJune 03, 2008 | 5:06:25 PMCategories: Election  
'08, NSA

http://blog.wired.com/27bstroke6/2008/06/mccain-id-spy-o.html

If elected president, Senator John McCain would reserve the right to  
run his own warrantless wiretapping program against Americans, based  
on the theory that the president's wartime powers trump federal  
criminal statutes and court oversight, according to a statement  
released by his campaign Monday.

McCain's new tack towards the Bush administration's theory of  
executive power comes some 10 days after a McCain surrogate stated,  
incorrectly it seems, that the senator wanted hearings into telecom  
companies' cooperation with President Bush's warrantless wiretapping  
program, before he'd support giving those companies retroactive legal  
immunity.

As first reported by Threat Level, Chuck Fish, a full-time lawyer for  
the McCain campaign, also said McCain wanted stricter rules on how the  
nation's telecoms work with U.S. spy agencies, and expected those  
companies to apologize for any lawbreaking before winning amnesty.

But Monday, McCain adviser Doug Holtz-Eakin, speaking for the  
campaign, disavowed those statements, and for the first time cast  
McCain's views on warrantless wiretapping as identical to Bush's.

     [N]either 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. [...]

     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.

The Article II citation is key, since it refers to President Bush's  
longstanding arguments that the president has nearly unlimited powers  
during a time of war. The administration's analysis went so far as to  
say the Fourth Amendment did not apply inside the United States in the  
fight against terrorism, in one legal opinion from 2001.

McCain's new position plainly contradicts statements he made in a  
December 20, 2007 interview with the Boston Globe where he implicitly  
criticized Bush's five-year secret  end-run around the Foreign  
Intelligence Surveillance Act.

"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," McCain said.

The Globe's Charlie Savage pushed further, asking , "So is that a no,  
in other words, federal statute trumps inherent power in that case,  
warrantless surveillance?" To which McCain answered, "I don't think  
the president has the right to disobey any law."

McCain's embrace of extrajudicial domestic wiretapping is effectively  
a bounce-back from Fish's comments, made at the Computers, Freedom and  
Privacy conference in Connecticut last month.  When liberal blogs  
picked up the story that McCain had moved to the left on wiretapping,  
the McCain campaign issued a letter insisting that he still supported  
unconditional immunity, as well as new rules that would expand the  
nation's spy powers.

The campaign's response was consistent with McCain's past positions  
and votes. But it riled Andrew McCarthy at the conservative National  
Review Online, who read the campaign's position as a disavowal of  
Bush's warrantless wiretapping program, and a wimpy surrender of  
executive power to Congress.

"What does it mean when he says Sen. McCain does not want the telecoms  
put into this position again?" McCarthy asked. "Is he saying that in a  
time of national crisis, the president should not be permitted to ask  
the telecoms for assistance that is arguably beyond what is prescribed  
in a statute?"

That's when the campaign issued the letter explaining McCain's new  
views of executive power, and revealing that McCain would, in certain  
future circumstances, rely on the same theory of executive power in  
wartime.

A spokesperson for McCain's camp did not respond to a request Monday  
for an explanation of the difference between the new policy and the  
December interview.