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


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.