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For McCain, A Switch On Telecom Immunity?
Recent Statements Signal Deeper Privacy Concerns

By Jonathan Weisman and Ellen Nakashima
Washington Post Staff Writers
Thursday, May 29, 2008

A top lawyer for Sen. John McCain's presidential campaign said telecommunications companies should be forced to explain their role in the Bush administration's warrantless surveillance program as a condition for legal immunity for past wiretapping, a statement that stands in marked contrast to positions taken by President Bush, McCain and other Republicans in Congress.

"There would need to be hearings, real hearings, to find out what actually happened, what harms actually occurred, rather than some sort of sweeping of things under the rug," Chuck Fish, a former vice president and chief patent counsel at Time Warner, said last week at the Computers, Freedom and Privacy conference in New Haven, Conn., according to an audiotape available on the conference Web site. "That would be absolutely verboten in a McCain administration."

The comments -- first noted last week on the blog of the technology magazine Wired -- contradict McCain's voting record, and they are almost certain to disrupt negotiations between Democratic leaders in Congress and Bush administration officials, who are seeking blanket immunity for the telecoms' cooperation with the surveillance program.

At issue is the administration's program to intercept phone calls and e-mails of suspected terrorists without a warrant from the secret federal court that has overseen domestic spying since the 1970s. The biggest telecom carriers in the nation participated in the program before it came to light and have since been deluged by nearly 40 lawsuits from customers claiming their privacy rights were violated.

Bush and congressional Republicans are trying to resurrect warrantless surveillance legislation, which lapsed in March, albeit under somewhat stricter supervision. But the administration argues that phone companies will participate only if they receive blanket immunity not only for future surveillance but for cooperation that started after the Sept. 11, 2001, attacks. Supporters of immunity say the companies acted in good faith that their assistance was lawful.

In February, when the issue reached the Senate, McCain voted repeatedly against failed Democratic efforts to strip out the legislation's retroactive immunity provisions or limit the surveillance program's reach. He then voted for the bill's passage.

Fish's comments and the campaign's responses indicate that McCain appears to be taking a new stance that undermines the GOP's negotiating position, as well as the party's efforts to label Democrats as weak on terrorism.

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.

But Democrats and privacy advocates see a stark change of position. McCain was one of 41 senators to vote against an amendment to make the Foreign Intelligence Surveillance Act the exclusive means for electronic surveillance in this country, an amendment offered to provide the clarity McCain says he wants, Democratic aides say. The amendment failed to get the 60 votes needed for passage.

"If that's his view today, he had a chance to back it up in recent votes on the Senate floor, and he did not," said David Carle, spokesman for Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.).

"Everything that Senator McCain's aide has said is fully consistent with what we've said," said Caroline Fredrickson, Washington office director of the American Civil Liberties Union. "The Republican position on the Hill has been the absolute opposite."

Jim Manley, a spokesman for Senate Majority Leader Harry M. Reid (D-Nev.), said he hopes McCain will pressure Bush "to back down from his untenable position so we can negotiate a bill as quickly as possible."

In his comments, Fish said that "there would probably be three things that would matter in a McCain administration."

"The first thing is, it would need to be explicit that we're not talking about something like granting indulgences," which he dismissed as "forgiveness without repentance."

Congress would need to hold hearings, Fish said, adding that "Congress would need to provide clear rules so that we would be certain that private records would be protected in the future."

The McCain campaign last week issued a statement, largely to the telecommunications firms themselves, seeking to clarify Fish's remarks. But the clarification merely added new complications for Republican negotiators because it still implied misdeeds by the telecoms.

"The granting of retroactive immunity supports the continuing efforts of participating companies yet should be done with explicit statements that this is not a blessing for future activities," the statement says.

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