McCain, Spying and Executive Power: A Complete Reversal in 6 Months
Last December, as his campaign was floundering, John McCain responded to a questionnaire on executive power, spying and torture that was distributed to all candidates by The Boston Globe's Charlie Savage. McCain explicitly refused to answer whether he thought there was "any executive power the Bush administration has claimed or exercised that . . . is unconstitutional." But on one critical issue -- whether he thinks the President possesses "inherent powers" under Article II "to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes" -- McCain gave an answer that was basically the equivalent of the ACLU/Russ-Feingold/Chris-Dodd view, and completely at odds with the Bush/Cheney/Yoo view of executive power. McCain answered:
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.
Savage followed that up with a related question and McCain was just as clear:
Globe: Okay, so is that a no, in other words, federal statute trumps inherent power in that case, warrantless surveillance? McCain: I don't think the president has the right to disobey any law.
That view as stated by McCain is the diametric opposite of the Bush administration's view, which asserts that the President has the power under Article II to spy on Americans without warrants even in the face of a law that criminalizes such warrantless spying (FISA). Just to underscore how radical McCain's December answer was for today's Republican Party, the answer McCain gave on that question was identical to the one given by Chris Dodd, John Edwards, Hillary Clinton, Ron Paul, and Barack Obama, but it was glaringly at odds with the evasive one given by Mitt Romney ("Our most basic civil liberty is the right to be kept alive") and Rudy Giuliani ("the president has certain core constitutional responsibilities to ensure that our nation can defend itself and our fundamental liberties in times of emergency").
But that was December. Now that McCain is desperate to shore up the support of right-wing extremists, he just gave the exact opposite answer yesterday. Over the last couple weeks, a controversy arose among right-wing executive power fanatics because a McCain representative said at a campaign event that McCain opposes telecom amnesty in the absence of probing hearings and an apology from the telecoms -- a reversal of McCain's January vote for full telecom amnesty without those conditions. That was followed by a Washington Post article containing quotes from a McCain spokesman suggesting that McCain's support for telecom amnesty was now less than absolute.
That series of confused responses from McCain on telecom amnesty and subsequent protests from the Right led the McCain campaign to issue a memo last week claiming that the Post story was "negligently written," that "the author of the article (Jonathan Weisman) displayed a reckless disregard for key facts," and that "John McCain's position on immunity has not changed. Period." The McCain memo was posted a few days ago on National Review's Corner. But that memo did not satisfy National Review's Andy McCarthy -- one of the nation's most extreme advocates of unchecked executive power -- and he then posed a long list of questions suggesting that McCain might be suspect when it comes to defending the Yoo theory of executive power and full-scale domestic surveillance.
Yesterday, the McCain campaign sought to extinguish this growing controversy by providing to National Review another statement setting forth McCain's views of executive power and spying. But the views McCain gave yesterday are completely at odds with the ones he gave to the Globe last December (and also in conflict with the statements of McCain representatives both at last week's event and in the Post):
Senator McCain supports the FISA modernization bill passed by the Senate without qualification. He believes no additional steps should be necessary to secure immunity for the telecoms; both the 109th and 110th Congresses have conducted extensive evaluation and examination of this topic and have satisfied the public's need for appropriate oversight; hearings purportedly designed to "get to the bottom of things" have already occurred; and 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.
Last December in the Globe, McCain was embracing the ACLU position on spying and executive power; now, to National Review, he's invoking the ACLU to demonize as civil liberties extremists whom McCain opposes.
Worse, when answering the Globe back in December, McCain said 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." Yesterday, though, McCain said that the President and the telecoms did nothing wrong in spying on Americans without warrants and that such spying was "appropriate" and constitutional "in the wake of the attacks on September 11, 2001". How can spying in violation of the law possibly be justified by the circumstances of 9/11 (as McCain said yesterday) if (as McCain said in December) the President is barred from spying outside of the law "no matter what the situation is"?
Worse still, look at what McCain said about spying and Article II yesterday to National Review:
We do not know what lies ahead in our nation's fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such 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.
In December, McCain said there was no such thing as Article II power to order surveillance in violation of FISA and agreed that, when it comes to warrantless eavesdropping, "federal statute trumps inherent power." But yesterday, McCain invoked that very same Article II authority as a basis for having telecoms help him spy.
In response to this new McCain memo yesterday, even Andrew McCarthy admitted the obvious: namely, that McCain has dramatically changed his views on executive power and spying. McCarthy wrote proudly:
In my humble opinion, the McCain camp's response is extremely significant in that it not only full-throatedly supports the surveillance reform being blocked by House Democrats; it marks a welcome evolution on the Senator's thinking about executive power - bringing him more into line with prior administrations and influential federal court decisions which concede presidential power under Article II of the Constitution to order warrantless surveillance when the United States is threatened.
In a separate article yesterday, McCarthy excitedly declared that whereas McCain previously believed that the President's spying program was illegal in violation of FISA, yesterday's "response [in National Review] implicitly shows Sen. McCain's thinking has changed as time has gone on."
McCarthy is absolutely right about McCain's reversal. In order to satisfy the right-wing extremists he now needs, McCain -- who only six months ago was giving answers on spying and executive power that were exactly the same as though expressed by the ACLU, Russ Feingold and Chris Dodd -- is now spouting theories of the Omnipotent President virtually equivalent to those used by John Yoo, David Addington and Dick Cheney over the last seven years to impose radical changes in how our Government functions. How far McCain has shifted is reflected by the fact that, in the December questionnaire, he said he would never use signing statements under any circumstances -- a commitment not even Obama or Clinton would make. A speech McCain delivered to the Federalist Society a few weeks ago presaged this reversal, but yesterday's statement leaves no doubt that McCain is now explicitly embracing the Bush administration's most radical executive power theories.
The bulk of the Bush controversies over the last seven years are grounded in the Bush/Cheney view of executive power: that when it comes to national security, war and foreign policy (so broadly defined that it even includes what the Government does to U.S. citizens, on U.S. soil), nothing can constrain what the President does -- not even laws enacted by the American people through their Congress. John McCain is now embracing those extremist theories in full. The only difficult question is to decide what's more disturbing: that McCain switches positions so quickly and completely on such fundamental questions, or that he is now espousing a view of presidential power that has fueled the radicalism and lawlessness of the last seven years?
UPDATE: It's also worth noting that these days, in order to please the self-proclaimed "small government" conservative movement, a candidate must now vow to spy on Americans with no warrants or oversight of any kind; reserve the right to torture; and even break the law -- ignore popular will as expressed through acts of Congress -- whenever such lawbreaking is deemed beneficial. Those are now defining planks in the limited-government "conservative" movement.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.