June 6, 2008 | By Kurt Opsahl

McCain Adopts Bush Administration's Flawed Legal Analysis of Warrantless Wiretaps

ABC News reported today a new statement from McCain campaign spokesperson Tucker Bounds on the Senator's views on the executive power to conduct warrantless wiretaps in defiance of the restrictions of the Foreign Intelligence Surveillance Act (FISA):

John McCain continues to believe, as he always has, that every President has the obligation to obey and enforce laws passed by Congress and signed by the President. His position has not changed. This is precisely why he believes that existing FISA laws need to be modernized to provide in statute clear guidance for future actions that may need to be taken, therefore making it less likely that any President would need to rely solely on constitutional authority to protect this country.

A number of courts, including the Foreign Intelligence Surveillance Court of Review, have recognized the President’s constitutional authority to conduct warrant-less surveillance for foreign intelligence purposes, that is, foreign-based communications and phone calls. The courts’ findings supported the Bush Administration’s efforts in the wake of September 11, 2001, and the McCain campaign has made statements referencing these findings.

The decision that McCain references is In re Sealed Case No. 02-001, 310 F.3d 717 (FIS Ct. Rev. 2002), which is the cornerstone of the Bush Administration's legal argument for its warrantless surveillance program. However, as numerous legal experts have explained:

The FISA Court of Review, however, did not hold that FISA was unconstitutional, nor has any other court suggested that FISA’s modest regulations constitute an impermissible encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President’s powers were beyond congressional control. To the contrary, the Truong court indicated that FISA’s restrictions were constitutional.

The experts, who include Walter Dellinger (former Assistant Attorney General, Office of Legal Counsel, and former Acting Solicitor General of the United States), Prof. Kathleen M. Sullivan (former Dean of Stanford Law School), William S. Sessions (former Director of the FBI), Philip B. Heymann (former Deputy Attorney General), Prof. Richard Epstein (Chicago Law School) and Laurence Tribe (Harvard Law School) , concluded that the Bush Administration's argument (upon which McCain now relies) "fails to offer a plausible legal defense of the NSA domestic spying program."

Indeed, Jack Goldsmith, former head of the Department of Justice's Office of Legal Counsel, testified that when he took charge of the OLC and first saw the legal analysis of the warrantless surveillance, he "could not find the legal support for" aspects of the program, describing the justifications as "a legal mess ... it was the biggest mess I encountered there."

According to a report in the New York Times, Deputy Attorney General James B. Comey in 2004 stated "that 'no lawyer' would endorse [John] Yoo's justification for the N.S.A. program." When Cheney's Chief of Staff and Legal Counsel David] Addington "demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: 'No good lawyer,' according to someone present."

No good lawyer would endorse the Bush Administration's legal theories claiming the right to defy FISA based upon In re Sealed Case No. 02-001. Senator McCain was right when he said "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." Likewise, presidents have the obligation to use sensible legal analysis, and not rely upon dubious theories promoted by executive power extremists like John Yoo.


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