May 23, 2008 | By Kurt Opsahl

McCain Not Giving Straight Talk on Warrantless Wiretapping

On Wednesday, a McCain campaign spokesperson outlined a surprisingly reasonable position on whether to hold telcos accountable for illegally spying on millions of Americans. EFF applauded his position at the time.

But earlier today, the McCain campaign claimed that they had made a mistake, saying the report "incorrectly represented" his position, which now is that "companies who assist the government" should be granted amnesty in the pending FISA legislation.

The revised position is difficult to reconcile with McCain's previous positions on the NSA warrantless wiretapping program.

Right after the New York Times revealed the Bush Administration's warrantless wiretapping program, McCain expressed his doubts about the program, telling MSNBC “Theoretically, I obviously wouldn’t like it."

When interviewed by CBS News, McCain was asked how he would feel if subjected to surveillance:

CBS: Well Senator, how do you personally feel about it. Not only are you a lawmaker, you're also a citizen. If you are on a phone call to somewhere overseas, and you found out the government was listening in, how would you feel about that?

MCCAIN: In my case, or any other innocent American's case, obviously I wouldn't like that, just because of the privacy concerns....

In the telecom litigation, we are suing on behalf of these innocent Americans, all of whom have no connection to terrorism. And they do not like it any more than McCain does.

Speaking to Matt Lauer on the Today show that same month, McCain agreed with that "it is up to a court of law to find out if someone broke the law here and if punishment should be handed out." Immunity for the telecommunications companies, however, would prevent the court from ruling on the legality of the President's program.

More recently, McCain clarified his position on the underlying legal issues with the Boston Globe:

Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?

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.

Okay, so is that a no, in other words, federal statute trumps inherent power in that case, warrantless surveillance?

I don't think the president has the right to disobey any law.

In short, despite the ire of the conservative pundits like Andrew McCarthy, McCain has previously rejected the Bush Administration's legal rationale for the warrantless surveillance program, sympathized with the millions of innocent Americans caught up in the NSA spying, and opined that the Courts should have the chance to determine whether the law was broken.

Given these statements, it is surprising and disappointing that McCain so strongly supports the Bush Administration's efforts to prevent the courts from ruling on the claims of innocent Americans in the telecom litigation. Senator, it's time to straighten your talk: please match your actions with your words, and stand up to defend the rights of Americans to be free from warrantless surveillance.


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