McCain ‘contradicts precisely what he said earlier’

When the scandal broke over the Bush administration’s policy of warrantless searches of Americans’ phone calls and emails, John McCain took a reasonably sensible position, consistent with a classical conservative, interested in limited government.

Just six short months ago, McCain told the Boston Globe that he, unlike the current occupant of the Oval Office, felt compelled to follow the law when protecting U.S. national security. Asked specifically if the president has the authority to sidestep the law and conduct surveillance on American soil without a warrant, McCain said, “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.”

The Globe, seeking clarification, asked whether federal statutes trumped a president’s war-time authority. “I don’t think the president has the right to disobey any law,” McCain said.

As has become typical with McCain, the Republican presidential candidate no longer believes what he used to believe.

A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team. In a letter posted online by National Review this week, the adviser, Douglas Holtz-Eakin, said Mr. McCain believed that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international phone calls and e-mail without warrants, despite a 1978 federal statute that required court oversight of surveillance. 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.”

McCain was, in other words, against presidential authority superseding the law before he was for it.



David Golove, a New York University law professor who specializes in executive power issues, said the statement by Holtz-Eakin “seems to contradict precisely what he said earlier.”

In addition to the fairly obvious flip-flop (what else is new), there are a couple of interesting angles to consider here.

First, the reference to Article II is pretty transparent — like Bush’s lawyers, the McCain campaign is arguing that the president’s inherent authority as Commander in Chief gives him the right to do literally anything in the interests of protecting national security. FISA gives the president certain powers, but according to this argument, the president need not feel bound to follow the law because he’s, you know, the president.

Second, there’s a political context to consider. Mark Kleiman argued:

McCain’s new pro-wiretap position was issued in response to a complaint by a right-wing blogger that his prior new position (not to be confused with his original position) wasn’t bold enough. “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?” huffed Andy McCarthy of National Review Online. (Translation: You’re not suggesting that the President has to obey the law, are you?”) And McCain folded like a cheap card table. Now that the wingnuts know that they can mau-mau McCain every time he deviates toward sanity, they’re going to keep pulling his chain. If he keeps responding this way, it’s going to be hard for even his acolytes in the media to keep calling him either principled or moderate.

Mark’s more optimistic about the treatment McCain will receive from a sycophantic media, but it’s a good point nevertheless.

And third, it’s probably worth taking a moment to consider the fact that this, once again, brings McCain precisely in line with Bush’s worldview and disdain for the rule of law. At the exact moment we might expect McCain to distance himself from Bush’s radicalism, McCain is doing the exact opposite, giving Bush’s passive contempt for the law a big bear hug.

There were probably some principled conservatives who saw McCain’s sensible remarks about the rule of law to the Boston Globe six months ago as encouraging. But he no longer cares about appearing sensible or concerned with legal norms, McCain has right-wing activists to motivate.

What an embarrassment.