June 15, 2011 | National Review Online

Lead, Senator

The McCain campaign reassures on surveillance reform, but …

There is much about which to be encouraged in the posted response by McCain spokesman Doug Holtz-Eakin to questions about surveillance reform that I raised last week. I’m grateful that he took the time to pen such a thoughtful answer.

By his account, it certainly appears that the McCain campaign was done an injustice by the Washington Post’s suggestion that the senator was flip-flopping on legal immunity for the telecoms. (The campaign did not help itself by entrusting a surrogate who did not grasp the senator’s position.) The House Democrats’ refusal to agree to immunity — i.e., their elevation of the financial interests of their trial-lawyer patrons over the public interest of Americans in aggressive intelligence collection against those at war with us — is the pivotal dispute delaying reauthorization of foreign-surveillance authority that passed the Senate with overwhelmingly bipartisan support (but is opposed by Senators Obama and Clinton).

The McCain campaign is unequivocally telling “Corner” readers that the senator supports the Senate bill, that he believes the telecoms acted appropriately in acquiescing in government requests for cooperation after the 9/11 attacks, and that no further hearings are necessary to get to the bottom of what happened given the searching congressional investigations that have already occurred.

The most interesting and, I’d submit, the most significant part of the McCain campaign’s response involves presidential power under Article II of the Constitution.

I pointedly asked whether Sen. McCain has changed his position about the lawfulness of President Bush’s warrantless surveillance initiative, ordered in the emergency wartime conditions that followed atrocities in which nearly 3000 Americans were killed and the seat of our military was targeted (as, probably, was the White House or the Capitol). McCain’s original comments when the New York Times exposed the top-secret program indicated a belief that the program was illegal because it did not comply with the 1978 Foreign Intelligence Surveillance Act (FISA), which requires a federal judge, rather than the commander-in-chief, to authorize monitoring.

The campaign declined to answer my question directly. Nevertheless, its response implicitly shows Sen. McCain’s thinking has changed as time has gone on and he has educated himself on this issue. The campaign now says (all italics below are mine):

[N]either the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001.

Further, the McCain spokesman elaborates:

We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution.

This is exactly right. It doesn’t mean Sen. McCain has lost his regard for FISA or thinks it’s any less important that we enact legislation that improves it. (And I say that as someone who thinks FISA is a bad law and that the Senate bill, though necessary, is itself a deeply flawed piece of legislation.) It means, as the McCain campaign is saying, that we don’t know what the future will bring. The Framers understood that too — which is why, notwithstanding their deep suspicions of executive power, they created a powerful presidency that could react with dispatch when hostile foreign forces threatened the United States.

I’ve only got one other question for the McCain campaign — more of a plea than a query: Why isn’t Sen. McCain leading on this crucial national-security issue?

This is a home-run waiting to happen. The Democrats, deeply in the thrall of the trial lawyers and Leftists who would prefer to see America vulnerable, are opposing commonsense legislation. Even the awful post-Watergate Congress, in its hostility to executive power, understood that foreign intelligence collection should not be managed by federal judges. Yet, the House Democrats’ position holds that if terrorists in Baghdad kidnap a U.S. Marine, we need to get a federal judge’s permission to authorize eavesdropping as those terrorists contact their confederates in Sadr City … or Tehran.

That’s lunacy. But it’s the Obama position. And it is classically symbolic of how the Democrats’ likely standard-bearer views our national security. McCain should be hammering him on this daily.

Meanwhile, as the stalemate goes on in Congress — and it has now been over three months since the Pelosi Democrats let our foreign surveillance authority lapse — we are hamstrung in our ability to collect intelligence against newly emerging terror cells, under circumstances where (as a 2007 National Intelligence Estimate explained) new cells are emerging all the time.

The Democrat leadership is content to leave us vulnerable. Sensible Democrats know this is a potential disaster — which is why so many of them voted for the Senate bill, and why so many of them are squirming in the House. Nightly, they are no doubt thanking the Almighty (or Mother Earth, or whatever it is that the Left thanks) that the Republican candidate is not riveting the public’s attention to their craven refusal to allow a vote on the Senate bill that everyone knows would pass by a comfortable margin.

President Bush has done what he can do, and has admirably held the line against further compromise on our security. But the brute politics are that he cannot lead on surveillance reform anymore.

Only Senator McCain can do that.


Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.