The "maverick" Sen. John McCain's spokesperson said today that McCain will command the same powers of warrantless wiretapping and "inherent" authority that President Bush has argued for:

[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. [...]

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.

According to Wired's Threat Level blog, "The Article II citation is key, since it refers to President Bush's longstanding arguments that the president has nearly unlimited powers during a time of war. The administration's analysis went so far as to say the Fourth Amendment did not apply inside the United States in the fight against terrorism, in one legal opinion from 2001."

A quick look at Article II of the U.S. Constitution will demonstrate that warrantless wiretapping is not one of the powers given to the president. The theory that he can collect foreign intelligence initially comes from his authority as "commander in chief of the Army and Navy of the United States," as well as several Supreme Court opinions. The president's case for warrantless wiretapping rests largely on United States v. United States District Court, 407 U.S. 297 (1972), which mandated that the president does not have the authority to conduct domestic wiretapping "without the detached judgment of a neutral magistrate." Interestingly, President Nixon made exactly the same argument as President Bush; namely, that "the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security." Nixon also made the assertion that the understanding of the technical parts of electronic surveillance were beyond federal judges, meaning they would be unqualified to judge the qualities of such surveillance; former Attorney General Alberto Gonzales said as much when he intimated that federal judges weren't qualified to adjudicate issues of terrorism.

Here's another good one: "These Fourth Amendment freedoms [from "unreasonable search and seizure"] cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates." For the president to argue that he is allowed to conduct wholly domestic electronic surveillance -- as is the case with the telecom wiretapping -- without a warrant contravenes the language of the very case he uses to bolster his opinion! Bush's minions are content to quote parts of cases that support the president's arguments and are equally content not to mention that there are vast swaths of the same cases that contradict the president's statements of "inherent" authority. Ultimately, as with the Youngstown steel case, the court decided against granting the president his crazy, self-proclaimed powers. "We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment," wrote the court in the 1972 case. "In this case we hold that this requires an appropriate prior warrant procedure." The case, by the way, was decided 8-0 (newly-minted Justice Rehnquist, formerly of the Nixon Justice Department, did not take part in the case). There was no hesitation or ambivalence on the part of the Supreme Court in this matter. In an unequivocal, unified voice, it declared, "The president has no constitutional authority to conduct warrantless domestic surveillance."

All this is moot if McCain's spokesman is not speaking for him, but I don't think so. Over the years, McCain -- who was once truly a "maverick" in the Republican party -- has normalized his beliefs. After his failed 2000 presidential bid, McCain surely realized that the key to winning the Republican nomination was falling into lock-step with the Republican mainstream. Sadly, the Republican mainstream is exactly the wrong place to be on civil liberties matters, as Republicans in the White House are willing to sacrifice constitutional guarantees in exchange for security.