McCain: I'd Spy on Americans Secretly, Too

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.

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