Intellectual Property Law

McCain Revises Stance on Warrantless Wiretapping Again

By Kurt Opsahl

Mere hours after a McCain spokesperson adopted the Bush Administration's flawed legal argument that courts have "recognized the President?s constitutional authority to conduct warrant-less surveillance" and that the "courts? findings supported the Bush Administration?s efforts in the wake of September 11, 2001," Senator John McCain said that:

?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.

(emphasis added). Previously, McCain had said that the president did not have the inherent authority to conduct warrantless surveillance.

At a news conference Friday, McCain said "It?s very clear that there?s questions that are wending their way through the courts as to what kind of powers the president of the United States has." Previously, speaking on the Today Show, McCain had agreed with host Matt Lauer 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."

His current solution? Retroactive immunity for the telecoms, which McCain said on Friday "will clear up the ambiguities now going through the courts of the United States of America." "One court has said that he was legal in what he did; other courts have said that it's not," McCain said. (A host of legal experts have explained why the argument based on that "one court's" decision is fatally flawed.) McCain went on to suggest "The whole issue can be resolved by passing the [FISA] bill."

Retroactive immunity is an interesting way of dealing with "ambiguities" -- simply prevent any court from ruling on the legal questions involved. The retroactive immunity in the pending FISA legislation is designed to protect the Bush Administration's dubious theories of executive power from judicial scrutiny. Essentially, by "clearing up the ambiguities" McCain means "depriving millions of Americans of a day in court on a matter of their Constitutional rights."

McCain should stop listening to Charlie Black, Wayne Berman, Dan Coats and the other lobbyists for the defendants in the pending lawsuits on his campaign staff, and start listening to the American people. A strong majority of likely voters oppose immunity for the telecommunications carriers who participated in the government's warrantless surveillance program, along with editorial boards across the nation.

Full post as published by Electronic Freedom Foundation - Deep Links on June 07, 2008 (boomark / email).