The McCain Campaign and Article II:
Today's New York Times has a story by Charlie Savage suggesting that John McCain has changed his views on the scope of Article II power. It seems like a big story, but when you get into the details, the evidence for a change seems to be surprisingly thin.

  The evidence for the changed position is an e-mail sent to NRO's The Corner by an advisor to the McCain campaign about Senator McCain's position on telecom immunity and FISA legislation. The e-mail is mostly about pending legislation, but it also has two sentences that touch on the Constitution. Here are the two sentences: (1) "[N]ither 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." (2) "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." The alleged inconsistency is with a statement by McCain in 2007: McCain was asked if he thought the government had Article II to power to trump FISA, and he said no.

  On Wednesday, an Obama campaign spokesman picked up on the e-mails and argued that McCain changed his earlier position. The McCain campaign then denied that McCain's position has changed.

  In the New York Times article, Savage suggests that the Obama campaign is correct that the two sentences from the e-mail really do show a change. But I don't see it. There is a basic difference between saying that monitoring is illegal and that it is unconstitutional: the Constitution is one source of law, but not the only law. Thus, in the case of the NSA surveillance program, my position was that it was illegal but constitutional. Maybe I'm missing something, but it seems like the most natural reading of these two remarks in the e-mail that this is Senator McCain's position, as well. Further, given that the McCain campaign itself denies that the e-mail was designed to suggest a change in direction, isn't it sort of weird to say that it did?

  Savage identifies three people who agree with Savage that the e-mail comments are inconsistent with Senator McCain's earlier position. First, NYU lawprof David Golove is relied on for the position that "while the language used by Mr. McCain in his answers six months ago was imprecise, the recent statement by Mr. Holtz-Eakin 'seems to contradict precisely what he said earlier.'" Unfortunately, the article does not say why that seems to be the case. Second, the article quotes Bush Administration critic and blogger Glenn Greenwald, who has stated that he sees the e-mail has a "complete reversal . . . to shore up the support of right-wing extremists." Third, NRO blogger Andrew McCarthy, one of the few people left who endorses the strong Article II vision, is quoted as saying that the e-mail "implicitly shows Senator McCain's thinking has changed as time has gone on and he has educated himself on this issue." I understand that these three people are reading the e-mails that way, but I don't understand why.

  Charlie Savage won a Pulitzer Prize for the Boston Globe for his articles criticizing the Bush Administration's Article II theories, so I understand that he would want to return to the theme now that he's at the New York Times. (BTW, congrats on the move, Charlie!) And maybe I'm quirky in not seeing the e-mails as inconsistent. But it seems like a strange story to me given how sparse the evidence is of a change.