About ten days ago, I was a co-moderator (with Ari Schwartz) of a panel at CFP during which surrogates for the Obama and McCain campaigns had a civil and well-informed conversation about tech policy. I was impressed by Chuck Fish, the McCain representative, who did his best to win the respect of the geek crowd in the room. (ArsTechnica report about the panel here.)
In response to a question about immunity for the telcos in connection with their cooperation with the NSA’s warrantless wiretapping program, Fish said that there should be hearings held to figure out what the NSA had been up to. He also (although vaguely) suggested that there should be statutory limits to what the NSA could do, and that the telcos and the NSA should be held to those limits.
Now Wired is reporting that McCain has repudiated Fish’s remarks. (That’s unfortunate, and I think unfair to Fish, who works full-time for the campaign and is clearly a careful guy. He didn’t seem like someone who would make misstatements when he was speaking for the campaign.)
McCain is going with Bush’s Law: No matter what the law or the Constitution says, if the president needs to carry out warrantless surveillance in his capacity as Commander in Chief of the armed forces, he can do it. This is the familiar, overreaching view that Article II essentially trumps everything else. If we’re “in a time of war,” anything goes.
Here is the bottom line: 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 publicÃ¢â‚¬â„¢s need for appropriate oversight; hearings purportedly designed to Ã¢â‚¬Ëœget to the bottom of thingsÃ¢â‚¬â„¢ 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.
Senator McCain has never stated, nor does he believe that telecoms should only receive retroactive immunity in exchange for congressional testimony about their actions. We do not know what lies ahead in our nationÃ¢â‚¬â„¢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.
The legal argument is straightforward: in general, domestic eavesdropping without a warrant is illegal. If the government is eavesdropping on “foreign powers” inside the U.S. it can go to a special court, the Foreign Intelligence Surveillance Court, and get an order authorizing the surveillance – or it can start the surveillance and ask for judicial authority afterwards. This allows the President to act in foreign affairs with expedition, but retains judicial supervision.
It’s alarming that McCain says he will be willing to ignore the law on the books if needed. We adopted this structure after evidence of overwhelming domestic surveillance abuse was revealed as part of the Church Committee’s work.
(It’s also alarming that some Democrats are willing to believe that prospective judicial supervision of warrant requests is an outmoded idea – you can see this in the FISA-rewrite debates. At least they seem to believe that the statute would have to be rewritten in order to avoid the current judicial supervision requirement.)
But let’s start with McCain. He’s more alarming. He’s saying he’d be willing to ignore the statute, whatever it says. I don’t think Obama would take this view.