Friday, June 06, 2008
So What Does John McCain Think of the President's Constitutional Authority to Violate FISA?
Not even the Shadow knows.
FISA has never required a warrant to intercept communications between two people overseas, or to intercept communication to a targeted person overseas if the communication is intercepted overseas. When the NYT disclosed the existence of the TSP, it suggested but did not prove that communications were intercepted inside the US, which most people reading the language of FISA would have believed required a warrant.
However, the Protect America Act changed that. It retroactively "clarified" the question of what is and isn't electronic surveillance covered by FISA. "Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."
With this change, even if the NYT was originally correct that communications were intercepted inside the US, this could no longer be regarded as covered by FISA or requiring a warrant as long as the target of the intercept was overseas.
The administration has never admitted that the TSP violated FISA as it was originally written. Certainly, there is no reason to believe that it violated FISA under the clarifed/changed definition.
Obviously it is better for a president to do what McCain suggests and follow the law as it exists than to, as may have been the case here, change the law to retroactively legalize something you have already done.
McCain is an Ex Officio member of the Senate Select Committee on Intelligence, so he may actually be one of the people who knows what really happened. However, under the rules he would not be allowed to disclose the facts. Since we do not know these details, it is not surprising that statements released on the matter are not clear. It would be illegal for him to be clear, and as he says in the statement quoted, he will not do something illegal.
Marty wrote: "How are we to understand Senator McCain's actual views?"
Well that presupposes that he has views! That's not at all obvious given his repeated to-ing and fro-ing on all manner of issues including repudiating his own previous bills!
Rather wouldn't it be more in line with what we know of the man that his favorite color is plaid and his favorite flower is "Meadow Mix"?
I think at this point in his storied career, he is a gentle, amiable, compassionate, scattered, repository of a well-intentioned ambition to lead.
Views and policies have very little to do with Senator McCain, and he with them.
McCain is in the same position many Democratic candidates for President have been in (John Kerry in particular comes to mind), trying to avoid either offending the base or alienating swing voters. Like Democrats (Kerry) before him, this involves twisting himself into knots that would send the highest-level yoga adept to a chiropractor.
If I understand the mish mash put out by the McCain campaign, McCain simultaneously believes that the TSP was legal and that a President cannot violate a congressional statute.
There is a blind hog finding an acorn quality to this position.
McCain is legally correct if I am correct in divining his positions. Article II does not grant the President power to ignore a valid Article I statute. However, to the extent that FISA seeks to direct foreign intelligence gathering, it is not a valid Article I statute because Article I grants no such power. Therefore, the President by implementing the TSP would not be violating a valid Article I statute.
However, I doubt that the constitutional scholars (sic) over at the McCain campaign thought that deeply about the subject. More likely, Mr. McCain is showing the symptoms of transitioning from the parochial interests of the Senate to thinking about the powers he will need to exercise as President.
If anything, I think you've been too easy on McCain. Consider the passage which reads "making it less likely that any President would need to rely solely on constitutional authority to protect this country". That's in the paragraph you labeled "so far, so good", but I read it as a dog-whistle to the right, a claim that the President has uncheckable Art. II authority. All McCain seems to say is that he'd like Congress to write a law confirming that Art. II claim.
This, of course, completely contradicts the statement to The Boston Globe last December.
The first comment reads like a statement by a true believer.
"even if the NYT was originally correct" "no reason to believe" The idea that the fact McCain can't say certain things,* it is "not surprising" that he is all over the place on much more than that material in particular. etc.
The final point is particular relevant. The surely open to debate comments supplied by HG on certain narrow issues simply does not address the broader point of this piece. It is a good part spin.
It isn't quite as fun spin for some as Bart's usual style, perhaps, but spin it is all the same. In fact, including the actually amusing acorn metaphor, fairly reasonable Bart popped up once again today. The cynic might say his disdain for McCain factors in, but hey, any port in a storm.
* The Speech and Debate Clause means in fact he can say a lot more, as might a true patriotic 'maverick' given what is at stake ... like he is going to be prosecuted anyway ... just like some who selectively leaked classified info when it helped the Republicans? But, we covered this ground months ago, haven't we?
In fact, including the actually amusing acorn metaphor, fairly reasonable Bart popped up once again today.
Not really. "Bart" just used to opportunity to repeat his previous assertions more ad nauseam, and then said that of course McCain's "constitutional scholars" are agreeing with "Bart".
BTW, I guess we now have fair license to add the "(sic)" tag to "Bart" whenever the mood suits us.
After all, when talking to Constitutional law professors, "Bart"'s a "constitutional scholar" of the first order When talking to British barristers like Mourad, "Bart" knows him some British law. When talking to practising civil rights attorneys like Dilan and Candace Gorham, "Bart" knows his civil and human rights law. And when discussing 1L CivPro, "Bart" knows more than this here one-time 1L.... Truly amasing. A legal polyglot We ought to be thankful to have his all-encompassing expertise here.
True enough Arne, more or less, but the kernel of "Bart" is surrounded by more sanity than usual.
With apologies about making this about Bart (hey I wanted to make it about Howard!), let me go on a bit since he is such a fav of the comments. He loves that btw. Negative attention is still attention.
We basically have two sentences of Bart, a truism leading up to it that he spins (usual m.o.), and then a bunch of McCain criticism. I'll take that, honestly.
As to McCain struggling to get a sense of what running for "President" means, more or less, that's probably right. Not that I agree with what Bart or McCain thinks that should mean.
As to McCain's constitutional people, if Bart "then said that of course McCain's 'constitutional scholars' are agreeing with 'Bart'" he showed a bit of self-knowledge in your view. He doesn't think too much about them ... putting the word in quotes and suggesting they are muddled.
Anyway, cheers as well.
John McCain's geriatric soft shoe to:
"ME AND MY SHADOW"
demonstrates his over 90% approval of he latter's administration's failed policies.
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