Adviser Says McCain Backs Bush Wiretaps

by VLOGZ | June 6, 2008 at 08:58 am

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WASHINGTON — A top adviser to Senator John McCainsays Mr. McCain believes that President Bush’s program of wiretappingwithout warrants was lawful, a position that appears to bring him intocloser alignment with the sweeping theories of executive authoritypushed 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 Constitutiongave Mr. Bush the power to authorize the National Security Agencyto monitor Americans’ international phone calls and e-mail withoutwarrants, despite a 1978 federal statute that required court oversightof surveillance.

Mr. McCain believes that “neither the administration nor thetelecoms need apologize for actions that most people, except for theA.C.L.U. and trial lawyers, understand were constitutional andappropriate 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, hewould do everything he could to prevent terrorist attacks, “includingasking the telecoms for appropriate assistance to collect intelligenceagainst foreign threats to the United States as authorized by ArticleII of the Constitution.”

Although a spokesman for Mr. McCain, the presumptive Republicanpresidential nominee, denied that the senator’s views on surveillanceand executive power had shifted, legal specialists said the lettercontrasted with statements Mr. McCain previously made about the limitsof presidential power.

In an interview about his views on the limits of executive powerwith The Boston Globe six months ago, Mr. McCain strongly suggestedthat if he became the next commander in chief, he would considerhimself obligated to obey a statute restricting what he did in nationalsecurity matters.

Mr. McCain was asked whether he believed that the president hadconstitutional power to conduct surveillance on American soil fornational security purposes without a warrant, regardless of federalstatutes.

He replied: “There are some areas where the statutes don’t apply,such as in the surveillance of overseas communications. Where they doapply, however, I think that presidents have the obligation to obey andenforce laws that are passed by Congress and signed into law by thepresident, no matter what the situation is.”

Following up, the interviewer asked whether Mr. McCain was saying astatute trumped a president’s powers as commander in chief when it cameto a surveillance law. “I don’t think the president has the right todisobey any law,” Mr. McCain replied.

David Golove, a New York Universitylaw professor who specializes in executive power issues, said thatwhile the language used by Mr. McCain in his answers six months ago wasimprecise, the recent statement by Mr. Holtz-Eakin “seems to contradictprecisely what he said earlier.”

Mr. McCain’s position, as outlined by Mr. Holtz-Eakin, wascriticized by the campaign of his presumptive Democratic opponent inthe presidential election, Senator Barack Obamaof Illinois. Greg Craig, an Obama campaign adviser, said Wednesday thatanyone reading Mr. McCain’s answers to The Globe and the more recentstatement would be “totally confused” about “what Senator McCain thinksabout what the Constitution means and what President Bush did.”

“American voters deserve to know which side of this flip-flop he’son today, and what he would do as president,” Mr. Craig said in a phoneinterview.

Tucker Bounds, a McCain campaign spokesman, said Mr. McCain’sposition on surveillance laws and executive power “has not changed.”

“John McCain has been an unequivocal advocate of pursuing theradicals and extremists who seek to attack Americans,” Mr. Bounds wrotein an e-mail message, adding that Mr. McCain’s “votes and positionshave been completely consistent and any suggestion otherwise is adistortion of his clear record.”

Asked whether the views Mr. Holtz-Eakin imputed to Mr. McCain wereinaccurate, Mr. Bounds did not repudiate the statement. But lateThursday Mr. Bounds called and said, “to the extent that the commentsof members of our staff are misinterpreted, they shouldn’t be read intoas anything otherwise.”

Neither Mr. McCain nor Mr. Holtz-Eakin, a former head of the Congressional Budget Office who primarily advises the campaign on economic issues, was available for comment, Mr. Bounds said.

Mr. McCain has long distanced himself from the Bush administrationon legal issues involving detention and interrogation in the fightagainst terrorism, an approach that has sometimes aroused suspicionamong conservative supporters of the Bush administration.

But more recently, as Mr. McCain has worked to consolidate hisparty’s base, he has taken several positions that have won him praisefrom his former critics while drawing fire from Democrats.

In February, for example, Mr. McCain voted against limiting the Central Intelligence Agencyto the techniques approved in the Army Field Manual on Interrogation,which complies with the Geneva Conventions. Mr. McCain said the C.I.A.needed the flexibility to use other techniques so long as it did notabuse detainees.

He also voted for legislation that would free telecommunicationscompanies from lawsuits alleging that they illegally allowed the N.S.A.to eavesdrop on their customers’ phone calls and e-mail without awarrant. The legislation would also essentially legalize a form ofsurveillance without warrants going forward.

But Mr. McCain had previously stopped short of endorsing the viewthat Mr. Bush’s program of surveillance without warrants was lawful allalong because a president’s wartime powers can trump statutory limits.

Andrew C. McCarthy, a National Review columnist who has defended theadministration’s legal theories, wrote that Mr. Holtz-Eakin’s statement“implicitly shows Senator McCain’s thinking has changed as time hasgone on and he has educated himself on this issue.”

And Glenn Greenwald, a Salon columnist and critic of the Bushadministration’s legal claims, wrote that the statement was a “completereversal” by Mr. McCain, accusing the candidate of seeking “to shore upthe support of right-wing extremists.”

The reaction to Mr. Holtz-Eakin’s statement is the latest link in achain of disputes over Mr. McCain’s positions on surveillance over thepast two weeks.

On May 23, the McCain campaign sent a volunteer lawyer, Chuck Fish,to be the candidate’s surrogate at a conference on computer policy. Mr.Fish spoke at a panel discussion on whether phone and Internetcompanies should be granted immunity from lawsuits for having helpedMr. Bush’s surveillance program.

Mr. Fish suggested that Mr. McCain wanted to impose conditions —like Congressional hearings — that would ensure that such “forgiveness”would not signal that the telecoms should feel free to disregardcommunications privacy laws in the future if a president tells them to.

After Wired magazine wrote about Mr. Fish’s remarks on its blog,raising the question of whether Mr. McCain’s position had become moreskeptical about immunity, the McCain campaign put out a statementsaying that Mr. Fish was mistaken. Mr. McCain supported ending thelawsuits without conditions and his position had not changed, thecampaign said.

On May 29, The Washington Post quoted Mr. Holtz-Eakin as saying thatMr. McCain did not want the telecoms “put into this position again” andthat “there must be clear guidelines for their participation andsufficient vetting” in any future situation.

Mr. Holtz-Eakin’s comments in turn drew fire from Mr. McCarthy. In ablog posting on the National Review Web site, he demanded to knowwhether Mr. McCain believes the Constitution authorizes a president tolawfully go “arguably beyond what is prescribed in a statute” during anational security crisis.

Mr. Holtz-Eakin laid out Mr. McCain’s position on the president’sclaimed constitutional powers to bypass surveillance laws in a letterto Mr. McCarthy, who this week called the statement “extremelysignificant” and said it “marks a welcome evolution on the senator’sthinking about executive power.”