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McCain tangled in flip-flop flap over wiretapping immunity

Republican says he hasn't changed his position on shielding telecommunications companies that illegally opened their networks to the Feds. But his statements suggest otherwise.

A series of statements about immunizing telecommunications companies that violated federal wiretapping laws have become something of an embarrassment, and perhaps even a problem, for John McCain's presidential campaign.

The statements revolve around whether McCain, like President Bush, supports legislation that could be voted on this month extending retroactive immunity to those companies and perhaps many more. The problem for the onetime captain of the Straight Talk Express is that his varying statements at different times are starting to seem -- dare we say it? -- almost Clintonian.

McCain and Bush
John McCain (left) meets with President Bush on March 5. In endorsing McCain's presidential bid, Bush said "he's not going to change when it comes to taking on the enemy. He understands this is a dangerous world." White House photo by Chris Greenberg

When news about the National Security Agency's warrantless wiretapping program became public years ago, McCain was critical of it. McCain told the Associated Press that he wanted to know more about the program but "theoretically, I obviously wouldn't like it." He agreed with Matt Lauer on The Today Show that "it is up to a court of law to find out if someone broke the law here and where punishment should be handed out."

That seems pretty clear. In 2005, at least, McCain was in favor of letting the courts decide whether AT&T and other telecos violated the law.

Last fall, while preparing our , we asked McCain point-blank whether he would support the bill (S.2248) providing retroactive immunity. On November 30, 2007 McCain sent us this response via e-mail:

Every effort in this struggle and other efforts must be done according to American principles and the rule of law. When companies provide private records of Americans to the government without proper legal subpoena, warrants, or other legal orders, their heart may be in the right place, but their actions undermine our respect for the law.

I am also a strong supporter of protecting the privacy of Americans. The issues raised by S.2248, and the events and actions by all parties that preceded it, reach to the core of our principles. They merit careful and deliberate consideration, fact-finding, and exploration of options. That process should be allowed to proceed before drawing conclusions that may prove to be premature.

If retroactive immunity passes, it should be done with explicit statements that this is not a blessing, there should be oversight hearings to understand what happened, and Congress should include provisions that ensure that Americans' private records will not be dealt with like that again.

A few weeks later, McCain told the Boston Globe this: "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."

What McCain told us isn't exactly what he told the Globe. But the import of the two statements is that the Arizona Republican either flatly opposes retroactive immunity -- or is severely critical of it and would only vote for it only if there are oversight hearings and "explicit statements" and "provisions" that it won't happen again.

As I've written before, when McCain sent us that e-mail, Zogby polls gave him a mere 8 or 9 percent of the vote nationally, behind Rudy Giuliani, Fred Thompson, and Mike Huckabee, and at best tied with Mitt Romney.

A change of heart?
But after McCain became the all-but-official nominee, his political principles appear to have become more malleable. He voted in February for retroactive immunity -- even though there were no explicit statements telling AT&T and other telecommunications companies that this is not a "blessing." There were no deals providing for "oversight hearings." And there certainly were no "provisions" to ensure this won't happen again.

Our story may have ended there. Except that campaign representative Chuck Fish (not an actual campaign lawyer, as has been incorrectly reported, but a surrogate) subsequently suggested that his candidate still wanted "hearings," which The Washington Post picked up on last week. McCain's campaign fired off a nastygram to the Post saying that their candidate's "position on immunity has not changed."

Straight Talk Express
Ahead of the New Hampshire primary earlier this year, McCain toured the state in a bus he calls the "Straight Talk Express." Anne Broache/CNET

Meanwhile, McCain was questioned about his position at a town hall meeting the next day -- he replied that Congress needs to "have hearings" -- which The Wall Street Journal dutifully reported. The fuss became enough to prompt the conservative National Review to begin questioning McCain's the-executive-can-wiretap-as-it-pleases credentials. Salon entered the fray too.

This has become suddenly important -- and timely -- again because a long-running stalemate in Congress over wiretapping, telecom immunity, and the Foreign Intelligence Surveillance Act may be about to end. We reported last week that Congress may vote soon on a bill, and an article on National Journal's Web site on Wednesday said that the House Intelligence Committee's top Democrat has now signed on.

The latest draft of the surveillance law rewrite would effectively pull the plug on lawsuits against telcos, including an important one that the Electronic Frontier Foundation is pursuing against AT&T. It's before the 9th Circuit right now, which seems to be content to wait to rule until Congress figures out what it's going to do.

Thanks to McCain's statements, at least some Democrats are smelling blood. Rep. Robert Wexler of Florida, who is a member of the House Judiciary committee, sent us this statement on Wednesday:

I am appalled by Senator John McCain's reaffirmation of support for the use of warrantless wiretapping on American citizens. Senator McCain has once again chosen to align himself with President George Bush, whose reprehensible spying program on Americans is a grave threat to our Constitutions guarantees of privacy and limited executive power. It is clear that Senator McCain, President Bush, and their Republican allies in Congress will continue to use scare tactics and fear mongering to claim that a president can simply chose to ignore America's laws... Senator McCain opposes a bipartisan House compromise bill that preserves appropriate court review of all surveillance of US citizens and gives judges the discretion to review all the necessary documents related to telecom lawsuits without offering blanket immunity.

From McCain's perspective, this is a perilous topic, especially because Barack Obama has been consistent and clear in saying he opposes retroactive immunity. Obama voted against immunity at the same time McCain voted for it.

If McCain defends his earlier statements, which hinted at reasonable pro-privacy, limited-government instincts, he risks alienating many Republicans who are already suspicious of him because of the McCain-Feingold bill, his opposition to some gun rights, and his votes against the Bush tax cuts.

Conversely, if McCain amends his position, he risks looking like he's flip-flopping, a potent charge that Republicans memorably leveled against John Kerry four years ago. So instead his campaign is insisting, improbably, that their candidate has never changed his mind. Here's an excerpt from the statement that they sent us (the full, unedited version is here):

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.

One problem with that is it seems to contradict what McCain himself said at the town hall meeting a day or two before, which is that Congress should hold hearings (nowhere did he say the ones that took place already were sufficient).

Yet there's a more important issue here, which is why the neo-cons are pressing McCain to adhere to the Bush administration's line. And that's the administration's theory of the so-called unitary executive, which says that the president's use of military force cannot be reviewed by courts.

McCain's earlier statements -- especially where he says presidents must "obey and enforce laws that are passed by Congress" -- seem to question the administration's interpretation. Beyond wiretapping, that touches on topics such as John Yoo's so-called torture memos, the applicability of the Geneva Convention to detainees, Bush's signing statements, and military commissions. Questioning the justifications for Bush's warrantless wiretapping means questioning the rest; no wonder McCain seems a little worried about where this may lead.