When President Bush asked Congress to allow warrantless surveillance of Americans' international communications, he was seeking permission to do something he doesn't think he needs permission to do. And like the parent of a defiant teenager, Congress gave in while insisting it wasn't.
Federal law already said the government may listen to the phone calls or read the email of people in the U.S. only if it follows procedures established by statute. The Foreign Intelligence Surveillance Act (FISA) amendments approved by Congress in June say it again. Twice. In effect, Congress said, "We mean it. Seriously"
In Congress' defense (did I really say that?), it's hard to think of an effective statutory response to a president who feels free to ignore the law. The only solution to that problem is to replace Bush with a president who is more inclined to respect the rule of law and the separation of powers.
Although he may change his tune if he's elected (especially since he'll face a Democrat-controlled Congress disinclined to check his power), Barack Obama at least claims to believe in these principles. "As president," he told The Boston Globe in December, "I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes."
The Illinois senator later disappointed many of his supporters by backing the FISA amendments, which not only approved warrantless wiretaps but granted retroactive immunity to the telecommunication companies that assisted Bush's illegal post-9/11 surveillance program. Still, Obama emphasized that Congress has the authority to restrict or rescind the president's spying powers.
By contrast, John McCain has vacillated on this issue and now seems unwilling to give a straight answer to the question of whether, as president, he would obey the law. "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," he told the Globe in December 2007. "I don't think the president has the right to disobey any law."
Yet a McCain adviser contradicted that position in a May 2008 letter to National Review Online, saying the Arizona senator believes "neither the Administration nor the telecoms need apologize for actions that most people…understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001." He added that "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 implies that the president has constitutional authority to flout statutory restrictions on wiretaps, the very position McCain disavowed in December. Pressed by The New York Times in June to explain the contradiction, a campaign spokesman 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.
Responding to the Times story, McCain himself claimed "it's ambiguous as to whether the president acted within his authority" when he ordered the warrantless wiretaps. This ambiguity cries out for explication: Does McCain believe Congress might have approved warrantless domestic surveillance without realizing it, as the Bush administration initially maintained, or that the president might have inherent authority to ignore Congress on matters related to terrorism?
But according to McCain, no more need be said on the subject, because we should "move forward" instead of "looking back." The question for voters is whether they want to move forward with a president whose commitment to obey the law is ambiguous.
Senior Editor Jacob Sullum (email@example.com) is a nationally syndicated columnist.