Are ex-telco lobbyists behind McCain's wiretap flip-flop? Nick Juliano

Published: Friday June 6, 2008



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Print This Email This The evolution of John McCain's position on warrantless wiretapping and executive power gives critics a potential one-two punch against the presumptive Republican nominee: the ability to paint him as "McSame" as President Bush and as a flip-flopper. A McCain adviser this week affirmed the Arizona senator's support for President Bush's ability to authorize the National Security Agency to eavesdrop on Americans' international communications without first receiving a warrant, which critics say violated the Foreign Intelligence Surveillance Act. This, after McCain himself said explicitly that the President cannot "disobey any law" to conduct warrantless surveillance. In a letter to the conservative National Review Online, McCain adviser Doug Holtz-Eakin underscored McCain's support for a Senate bill granting immunity to the telecommunications companies that facilitated the NSA's warrantless surveillance and declared that neither President Bush nor those companies should "apologize for actions that most people, except for the ACLU and trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001." Holtz-Eakin's letter was an attempt to dial back earlier reports that McCain might be shifting on the immunity issue. A campaign legal adviser told a conference last month that a McCain administration would subject the telecommunications companies to "real hearings to find out what actually happened, what harms actually occured." The letter emphasized that such hearings would not be necessary and insisted that McCain "do everything he can" to protect against terror threats, including invoking his constitutional authority to request surveillance assistance from the telephone and Internet companies. While McCain's position on wiretaps and telcos is zigging this way and that, a new report also details the extent to which lobbyists who earned a living representing the very phone companies accused of breaking the law are now working for his campaign. The Electronic Frontier Foundation, which is leading the charge against telco immunity and representing plaintiffs in several pending lawsuits, lays out the connections: Last fall Newsweek reported on the telecom's "secretive lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits against them for assisting the U.S. intelligence community's warrantless surveillance programs." The magazine named some of the chief telecom immunity lobbyists:



Among the players, these sources said: powerhouse Republican lobbyists Charlie Black and Wayne Berman (who represent AT&T and Verizon, respectively), former GOP senator and U.S. ambassador to Germany Dan Coats (a lawyer at King & Spaulding who is representing Sprint) ...



All three are now working with McCain....



USA Today reports "Of the 66 current or former lobbyists working for the Arizona senator or raising money for his presidential campaign, 23 have lobbied for telecommunications companies in the past decade." The New York Times noted Holtz-Eakin's letter Friday and spoke to several legal experts suggesting that McCain has shifted his position on wiretapping, compared to an earlier interview with the Boston Globe in which he seemed to distance himself from Bush's sweeping view of executive power. 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.



Mr. McCains position, as outlined by Mr. Holtz-Eakin, was criticized by the campaign of his presumptive Democratic opponent in the presidential election, Senator Barack Obama of Illinois. Greg Craig, an Obama campaign adviser, said Wednesday that anyone reading Mr. McCains answers to The Globe and the more recent statement would be totally confused about what Senator McCain thinks about what the Constitution means and what President Bush did.



American voters deserve to know which side of this flip-flop hes on today, and what he would do as president, Mr. Craig said in a phone interview.



Tucker Bounds, a McCain campaign spokesman, said Mr. McCains position on surveillance laws and executive power has not changed. Sen. Bob Graham, who was chairman of the Senate Intelligence Committee when Bush instituted the warrantless wiretapping program after 9/11, called the justification of the program a "smokescreen" for a wider data-mining effort. "All of this is really a smokescreen and what the administration is hiding under that smoke screen. ... Really they're doing data mining which is where you're collecting milions of pieces of information," Graham said in response to a question from RAW STORY during an Obama campaign conference call Friday. Graham, an Obama supporter, said current FISA law, which McCain believes is inadequate, provides more than enough leeway for the NSA and other agencies to gather the intelligence they need. He said the warrantless wiretapping was an effort to resurrect the Total Information Awareness data-mining program that had been abandoned by the administration. "The administration instead of walking away from it's collapsed tent, tried to find a new way to erect it," he said. Friday's Times' article on McCain's shifting position was written by Charlie Savage, the former Boston Globe reporter who won a Pulitzer for his reporting on Bush's efforts to expand the scope of executive power. Savage also was perhaps the only reporter to comprehensively quiz the presidential candidates on their views of the president's power. EFF's Kurt Opsahl asks whether the telco lobbyists in McCain's inner circle have helped push him away from his previous views. The strong connections between the telecom immunity lobbyists and the McCain campaign raise serious questions about McCain's about-face on warrantless wiretapping. As recently as November 2007, McCain told CNET News (emphasis added):



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. McCain's delicate dance on telecom immunity and warrantless wiretapping demonstrates the precarious position he finds himself in headed toward the presidential election in November. He needs to distance himself from Bush's most unpopular policies and wrong-headed decisions without alienating a conservative base that still is largely supportive of many of these policies. In addition to standing with the White House on wiretapping and immunity, McCain also voted against a Bush-opposed bill that would formally ban torture among CIA interrogators by forcing their compliance with the Army's Field Manual on Interrogation. The vote struck many as a political calculation from McCain, who was tortured for five years as a prisoner of war in Vietnam, and he was widely criticized for it. McCain's latest wiretapping gambit also has earned him much condemnation on the left. Salon's Glenn Greenwald, who has often criticized the media's lax examination of McCain said Friday's story emphasizes the extent to which questions about his views, and how much they parallel Bush's, need to be asked. "McCain is simply incapable of forming a coherent position on what he thinks about any of this, dramatically changing his answers almost from one day to the next depending on who is asking," Greenwald writes. "This behavior, culminating in his embrace this week of the Bush/Cheney/Yoo theories, severely undermines the two attributes the media relentlessly uses to depict him -- his 'moderate' ideology and his straight-talking, principled independence."