Yesterday, the New York Times’ Charlie Savage reported that in a recent letter, Douglas Holtz-Eakin, top aide to Sen. John McCain (R-AZ), said McCain believes that the Constitution gave President Bush the authority to wiretap Americans without warrants. The actions “were Constitutional and appropriate in the wake of the attacks on September 11, 2001,” Holtz-Eakin said.
At a news conference yesterday, a reporter asked McCain whether Bush’s warrantless National Security Agency (NSA) surveillance program, exposed in December 2005, was illegal. McCain said it’s unclear whether Bush broke the law by spying on Americans without court approval. The Times reports:
“It’s ambiguous as to whether the president acted within his authority of 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 to day 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.’’
It’s not ambiguous as to whether spying on Americans without a warrant is illegal. The Foreign Intelligence Surveillance Act of 1978 specifically states that the President can authorize spying without a court order only if:
–“There is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”
— “The acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers“
In contrast, Bush’s warrantless spy program, as the New York Times explained in December 2005, authorized “warrantless eavesdropping on those inside the United States – including American citizens.”
In fact, in August 2006, U.S. District Judge Anna Diggs Taylor declared the program unconstitutional, as it “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III.” Taylor added that “the president of the United States…has undisputedly violated the Fourth [amendment] in failing to procure judicial orders.”
McCain has also recently embraced retroactive immuity for telecommunications companies that helped the Bush Administration target Americans without court orders. As the Electronic Frontier Foundation noted yesterday, McCain’s campaign is staffed by aides with close ties to the telecom industry.
Marty Lederman writes, “If one examines the entire series of statements, it soon becomes evident either that the Senator and his staff have no earthly idea what they’re talking about or (more likely) that they are quite deliberately being as ambiguous, equivocal and contradictory as possible, so that they can embrace whichever view is politically expedient at any given time and with any given audience.”