May 29, 2008 | National Review Online

Re: Immunity Dispute

Not so fast. It is reassuring to read that senior McCain adviser Doug Holtz-Eakin apparently disavows at least some of the remarks reported by the Washington Post to have been made by attorney Chuck Fish, the surrogate the McCain campaign sent to the Computers, Freedom and Privacy conference. Presumably — though it would be nice if Mr. Holtz-Eakin were more definitive — this means Sen. McCain does not believe, as Mr. Fish indicated, that the telecoms should only receive immunity in exchange for congressional testimony about what they did in connection with the program.

Nevertheless, the questions raised by the article are not limited to Mr. Fish's remarks; they include statements attributed by the Post to Mr. Holtz-Eakin himself. To wit (italics mine):

Doug Holtz-Eakin, McCain's senior policy adviser, said Fish was sent to the conference to represent McCain's position, which he did. 'Senator McCain supported and voted for immunity for the past actions of the telecommunications companies, but going forward, he does not want them put into this position again,' he said.

'Most important in all of this, there must be clear guidelines for their participation and sufficient vetting,' a point Fish was trying to make, Holtz-Eakin said.

Did Mr. Holtz-Eakin make these statements, and, assuming he did, what pray tell did he mean?

What does it mean when he says Sen. McCain does not want the telecoms put into this position again?

Is he saying that in a time of national crisis, the president should not be permitted to ask the telecoms for assistance that is arguably beyond what is prescribed in a statute?

Is he saying that, contrary to the indication of the Foreign Intelligence Surveillance Court of Review, Sen. McCain does not believe the president has authority under Article II of the Constitution to collect intelligence against foreign threats to the United States unless a federal judge gives permission?

When he says, 'there must be clear guidelines for [the telecoms'] participation,' does that mean — even if it is not a precondition for immunity — Sen. McCain believes the telecoms should, as his surrogate Mr. Fish asserted, be subjected to 'hearings, real hearings, to find out what actually happened, what harms actually occurred, rather than some sort of sweeping of things under the rug'?

  Here, it bears noting that (a) congressional leaders were briefed repeatedly about the NSA program while it was ongoing; (b) members of the Intelligence and Judiciary Committees have been given access to classified information about the program since then; and (c) the idea of avoiding a public airing is not to “sweep things under the rug” but to avoid giving our enemies chapter and verse about how we monitor them.

What does Mr. Holtz-Eakin mean by “clear guidelines” and “sufficient vetting”?  And what is he suggesting should be done so that we can achieve that?  How would it help a President McCain protect the country to have Congress attempt to place limits on his authority to seek assistance from the industry with control over, and unmatched expertise about, our communications networks?

Mr. Hotz-Eakin is adamant in relating that he told the Post, “John McCain’s position has never changed on this issue. Period.”  Okay.  As I’ve previously detailed (with citations drawn from the public record), Sen. McCain’s initial position — when the New York Times exposed the top-secret NSA program in 2005 — was that the Bush administration had acted illegally in ordering warrantless wiretapping (with notice to leaders of Congress) in order to protect the United States from additional 9/11-style attacks.  Is that one of the positions that Sen. McCain has never changed?

That is to say, does Sen. McCain believe, despite (a) the above mentioned assertion by the highest, most specialized federal court ever to rule on FISA, (b) numerous other federal appellate court decisions attesting to the president’s power to conduct warrantless surveillance to protect against foreign national-security threats, (c) the opinions expressed by the Justice Department during both Democrat and Republican administrations, (d) the sense of Congress expressed in the original 1968 federal wiretapping statute, and (e) numerous federal court decisions (including Supreme Court decisions) permitting warrantless searches of persons, items sent by mail, and computers (including stored email) as they cross U.S. borders, that President Bush did not have constitutional authority to order warrantless monitoring of cross-border communications to or from suspected foreign terrorists after 3000 Americans were murdered on 9/11 by embedded al Qaeda operatives acting on the instruction of their overseas masters?