Would President McCain Obey the Law? 'It's Ambiguous.'

Jacob Sullum | June 11, 2008

In a column I wrote a couple of months ago, I noted that John McCain seemed to have a less expansive view of presidential authority than George W. Bush. Now the distance between them seems to be shrinking. In a recent letter to National Review Online, McCain adviser Douglas Holtz-Eakin reported that the Arizona senator believes President Bush acted within his constitutional authority when he violated the Foreign Intelligence Surveillance Act (FISA) by approving warrantless monitoring of international communications involving people in the United States. According to Holtz-Eakin, who was responding to an NRO post by Andrew McCarthy that questioned whether McCain was sufficiently supportive of Bush's position on this issue, the presumptive Republican presidential candidate believes "neither 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."

Holtz-Eakin added that as president, "John McCain will do everything he can to protect Americans from [terrorist] 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 reference to Article II clearly implies that McCain would feel free to violate any statute he believed impeded his ability to conduct anti-terrorist surveillance.

As The New York Times noted on Friday, that position directly contradicts the one McCain took in response to questions about executive power posed by The Boston Globe last December:

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.

Note that McCain says there are some areas where FISA's warrant requirements "don't apply," not some areas where they are superseded by the president's inherent powers. The example he gives, "surveillance of overseas communications," refers to email and telephone calls between parties who are both located abroad, which are not covered by FISA's warrant requirement, rather than the domestic-to-foreign communications that were the subject of Bush's order. His statement is a clear disavowal of the notion that "the president has the right to disobey the law." But instead of saying Holtz-Eakin got McCain's views wrong, the senator's campaign offered a series of nonresponses:

Tucker Bounds, a McCain campaign spokesman, said Mr. McCain's position on surveillance laws and executive power "has not changed."

"John McCain has been an unequivocal advocate of pursuing the radicals and extremists who seek to attack Americans," Mr. Bounds wrote in an e-mail message, adding that Mr. McCain's "votes and positions have been completely consistent and any suggestion otherwise is a distortion of his clear record."

Asked whether the views Mr. Holtz-Eakin imputed to Mr. McCain were inaccurate, Mr. Bounds did not repudiate the statement. But late Thursday Mr. Bounds called and said, "to the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise."

Thanks for clearing that up. The day the Times story appeared, McCain treated anyone who might have been troubled by it to some of his legendary straight talk:

"It's ambiguous as to whether the president acted within his authority or not,'' he said, saying courts had ruled different ways on the matter. "I'm not interested in going back. I'm interested in addressing the challenge we face today of trying to do everything we can to counter organizations and individuals that want to destroy this country. So there's ambiguity about it. Let's move forward.''

There is no ambiguity as to whether FISA required warrants for the sort of surveillance Bush authorized the National Security Agency to conduct, and the argument that Congress unintentionally amended FISA when it authorized the use of military force against Al Qaeda and the Taliban does not pass the laugh test. The only real issue is whether the president has the constitutional authority to disregard statutes such as FISA when they get in the way of actions he considers necessary to prevent terrorist attacks. In December, McCain said the president does not have that authority; now he says "there's ambiguity about it."

Pace Holtz-Eakin, this issue is not of interest only to "the ACLU and trial lawyers"; pace McCain, it is not an excuse for pointless recriminations about long-ago actions that are irrelevant to "addressing the challenge we face today." As we "move forward," there are few questions more important than whether the president is bound to obey the law even when it conflicts with his own ideas about how best to fight terrorism. If McCain cannot give a straight answer to that question and stick to it, he does not deserve the vote of anyone who believes in the rule of law and the separation of powers.

Comments

DannyK|6.11.08 @ 6:48PM|#

John McCain is willing to be ambiguous if that's what it takes to keep us safe. He'll even be cryptic and mysterious! He's a whatsit wrapped in an enigma! You gotta respect that.

|6.11.08 @ 6:55PM|#

Ambiguous, indeed. Next thing you know, he'll be giving safety tips...

No Name Guy|6.11.08 @ 7:09PM|#

Pig Mannix, you should've saved that video for when he ads Charlie "I'm Closeted as Hell" Crist to the ticket.

Place your bets|6.11.08 @ 7:21PM|#

Which thread gets more comments?

The previous post with its "Is Obama a Socialist?"

Or this one with "Is McCain a Facist?"


I'm puting 4 quatloos on the newcomer.

Obama!|6.11.08 @ 7:40PM|#

Barack Obama will only break the law for the common good, not his oil and defense contractor friends.

Bob|6.11.08 @ 7:53PM|#

Newsflash: From the President on down, the Feds don't follow the same rules as the commoners are expected to follow.

Grasping|6.11.08 @ 8:05PM|#

Maybe McCain is trying to keep the terrorists off-balance by not answering the question. This way they can't prepare a strategery.

Elemenope|6.11.08 @ 8:09PM|#

Newsflash: Bob clearly doesn't know jack about who Judge Kozinski is, or foolishly believes that he has actually done something wrong.

I'll only be sad if he is forced to recuse himself from the case; it would be like forcing a judge who had ever heard music to recuse himself from a copyright case.

Elemenope|6.11.08 @ 8:11PM|#

I'm puting 4 quatloos on the newcomer.

Oh, I dunno. Folks round these parts hate crypto-pseudo-lukewarm socialists with a bloodthirsty passion.

neither 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.

A modern Republican expresses support for the Imperial Presidency?

Well, fuck me sideways.

Bob|6.11.08 @ 8:29PM|#

Newflash for antelope: There's no reason to show any respect for a judge who didn't throw out the ridiculous charges in the first place. The fact that he had porn on his website is entertaining in the way that evidence of hypocrisy always is, but nothing in itself.

By the way, please refrain from making analogies until you figure out how to make one that actually makes minimal fucking sense.

|6.11.08 @ 8:39PM|#

"neither 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."

If I may interrupt with some crass politics, McCain is simply wrong about the American people. Polling shows that telecom amnesty is a big loser.

Elemenope|6.11.08 @ 8:42PM|#

Thanks, Bob. I feel appropriately chastised.

Oh, no, wait...I suddenly realized that a summary dismissal is probably the hardest thing for a person on either side of a case can achieve, and that you asserting that a judge should just up and do that without you being familiar with all the facts of the case makes you a complete asshat.

Now I don't feel chastised anymore.

Apaulogist|6.11.08 @ 10:37PM|#

The follow-up question that should have been asked:

"Senator, do you think that such an ambiguous law should be repealed or rewritten for clarification?

MJ|6.12.08 @ 6:56AM|#

"The example he gives, "surveillance of overseas communication," refers to email and telephone calls between parties who are both located abroad, which are not covered by FISA's warrant requirement, rather than the domestic-to-foreign communications that were the subject of Bush's order."

Perhaps because McCain's thinks he has a chance of becoming president and may actually has to deal with the legislative abortion FISA is. If FISA is not applicable to surveillance of foreign to foreign communications, then it is not practical to require a warrant for monitoring a foreign subject who happens to be communicating with someone (who may be unknown) in the US (as opposed to when the subject of surveillance is in the US). FISA is bad law.

jkp|6.12.08 @ 7:12AM|#

MJ,

Please stop trying to dispel preconceived ideological notions of the folk around here. Thanks.

Elemenope|6.12.08 @ 7:16AM|#

If FISA is not applicable to surveillance of foreign to foreign communications, then it is not practical to require a warrant for monitoring a foreign subject who happens to be communicating with someone (who may be unknown) in the US (as opposed to when the subject of surveillance is in the US). FISA is bad law.

Let me get this straight. Your argument for why FISA is "bad law" is that, um, it's *hard* (i.e., "takes effort") to do law enforcement while preserving the rights of Americans?

Color me unimpressed with your analysis.

|6.12.08 @ 8:22AM|#

The "if" and "then" parts of that statement have nothing to do with each other.

Gilbert Martin|6.12.08 @ 8:34AM|#

"Would President McCain Obey the Law?"

There's never been any President that disobey the law more than FDR, since every single bit of his "New Deal" is an unconstitional violation of the 10th Amendment.

And every President since him has gone along with it so none of them have obeyed the law.

|6.12.08 @ 8:35AM|#

Would President McCain Obey the Law? 'It's Ambiguous.'

Ummm... no. It's actually pretty clear that he wouldn't.

|6.12.08 @ 8:40AM|#

There's never been any President that disobey the law more than FDR [...]

Though, you must admit, not through any lack of trying on Dubya's part.

Episiarch|6.12.08 @ 8:48AM|#

Newflash for antelope: There's no reason to show any respect for a judge who didn't throw out the ridiculous charges in the first place. The fact that he had porn on his website is entertaining in the way that evidence of hypocrisy always is, but nothing in itself.

Bob, you are a grade-A nimrod. The judge in question is one of the biggest advocates of free speech in the federal judiciary. He is probably the most likely judge in the US to rule in favor of the defendant. Did you notice that the defendant's lawyer does not want him to recuse?

Nigel Watt|6.12.08 @ 9:06AM|#

to the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise.

I'm a well-educated person, but can somebody tell me what the hell that means?

|6.12.08 @ 9:07AM|#

So your evidence that we're not in an inflationary period is that oil could be at $900 a barrel instead or $137?

|6.12.08 @ 9:07AM|#

crap, wrong thread.

Elemenope|6.12.08 @ 9:08AM|#

I'm a well-educated person, but can somebody tell me what the hell that means?

I think your education is getting in the way, because that sentence ("to the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise.") is too stupid for words.

|6.12.08 @ 9:36AM|#

What is Obama's stand on FISA? Say a situation where a known Hamas leader in the Middle East calls a known militia leader in Montana, and 5 minutes later the militia leader calls him back. Does FISA require a warrant in such cases to listen in on the call back? What does Obama suggest? What do libertarians suggest?

Elemenope|6.12.08 @ 10:02AM|#

Bob, you are a grade-A nimrod.

And may I just also add that of all the many things I have been called, being called an "antelope" (or any other veldt-dwelling quadruped) is a first.

|6.12.08 @ 10:30AM|#

Does FISA require a warrant in such cases to listen in on the call back? What does Obama suggest? What do libertarians suggest?

I'll bite: under the existing law, i.e. the part that really got passed by Congress back in the 1970s, not the stuff Addington and Yoo made up, the NSA does need a warrant for this, but it can start listening immediately as long as it gets a warrant within 72 hours. I don't think anyone is suggesting that this change. Accountability is the important thing here.

|6.12.08 @ 11:06AM|#

What Nat describes would certainly seem reasonable to 95% of Americans. So what reasons would Bush/McCain advance for not following a requirement that "hot" intercepts could be immediately tapped as long as they got continuing approval within 3 days?

|6.12.08 @ 12:27PM|#

They want to datamine, creech.

They want to use wiretapping to develop leads, not just follow them up.

|6.12.08 @ 3:02PM|#

It's actually pretty clear that he wouldn't.

I think the ambiguity arises from the fact that he won't say he'll break the law, but he will do it.