McCain seems to shift right in terror debate

Aligns with Bush on two key votes

John McCain, who appeared at a town hall meeting in Oshkosh, Wis., yesterday, has sided with President Bush on key votes related to interrogations and warrantless surveillance. (gerald herbert/Associated Press)

WASHINGTON - Senator John McCain, who has long distanced himself from the Bush administration on legal issues involving the war on terrorism, this week aligned himself with conservative supporters of the White House on key votes related to the interrogation of prisoners and warrantless surveillance.

Though McCain supporters defended his votes as consistent with his past positions, both appeared to represent a move to the right on issues in which the senator has been at odds with his party's conservative wing.

David Golove, a New York University law professor who studies executive power, said McCain seems to be changing his views in order to "consolidate support among the most conservative parts of the Republican Party, who generally have been sympathetic to the kinds of activities undertaken by President Bush that had made Senator McCain extremely uncomfortable."

On Wednesday, McCain voted against a bill restricting CIA interrogators to the techniques approved in the Army Field Manual, which complies with the Geneva Conventions. McCain - who has consistently argued that the administration was wrong to insist that Bush's wartime powers allow him to employ controversial tactics despite antitorture laws and treaties - issued a statement arguing that the CIA needed more flexibility to extract information from terror suspects.

Ever since the Abu Ghraib torture scandal came to light in 2004, McCain has been the most outspoken Republican voice against such interrogation tactics. In 2005, McCain pushed a ban on "cruel, inhuman, and degrading treatment" through Congress despite Bush's opposition. And while he has never said the CIA's interrogation techniques should be confined to those in the Army Field Manual, he has lauded the manual as effective and repeatedly declared that the United States should treat detainees humanely because "it's not about who they are, it's about who we are."

Moreover, McCain voted Tuesday to terminate lawsuits against telecommunications companies that participated in Bush's warrantless wiretapping program. Passage of the bill would force courts to toss out some 40 cases in which critics of the program are trying to get a judge to rule that their participation was illegal.

In that respect McCain's vote runs counter to his previous criticism of the program. After the program came to light in 2005, McCain criticized Bush for not coming to Congress to change the law requiring warrants. And in an interview with the Globe about presidential power in December, McCain said he did not believe that presidents have the power to authorize surveillance programs that bypass statutes, saying: "I don't think the president has the right to disobey any law."

Said Golove, "He's willing to compromise on long-held positions that he's taken, which are positions that have great moral considerations that stand behind them, apparently out of concern about political consequences."

In a lengthy statement McCain filed into the Congressional Record this week, the senator defended himself against any suggestion that he had flip-flopped on his opposition to torture.

McCain said that he still opposes the use of cruel tactics, but that he has never supported limiting the CIA to only those techniques specifically listed in the Army Field Manual.

The senator also explained that he believes that one controversial technique the CIA has sometimes used - waterboarding, which McCain described as "mock execution by inducing the misperception of drowning," and which the Army Field Manual bans - is illegal under existing law. But, he said, the CIA still needs to be able to use other "alternative interrogation techniques" beyond those that are "publicly listed and formulated for military use."

"What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program," McCain said.

But critics said McCain's explanation was disingenuous because he knows the administration has interpreted existing antitorture laws as allowing a host of harsh techniques.

In recent days, Justice Department officials have also refused to say whether waterboarding is illegal under a 2006 law, saying only that the CIA is not currently using the tactic.

Elissa Massamino, the Washington director of Human Rights First, called McCain's vote this week "devastating" because the senator has been "the person with the highest profile and the greatest standing on this issue in the Senate."

"His argument seems to be that we've told the administration that it needs to obey the law and what needs to happen here is a good-faith interpretation of the law, but all evidence suggests that that has not happened from day one and there is no reason to believe it will happen now," she said.

In addition to waterboarding, other interrogation techniques used by the CIA have reportedly included shackling prisoners into painful stress positions, forced nudity, prolonged isolation, sleep deprivation, subjection to temperature extremes, and bombardment with loud noises and bright lights for lengthy periods.

McCain did not explain his vote to give retroactive immunity to the telecommunications companies, and neither the McCain campaign nor his Senate office responded to questions about the issue. Supporters of the measure have argued that private companies should not be punished for agreeing to the administration's request for their help after the 2001 terrorist attacks.

The senator followed his vote by bashing the House of Representatives as "disgraceful" for not immediately passing the same bill the Senate had just approved.

By contrast, the two remaining Democratic presidential candidates, Senators Barack Obama and Hillary Clinton, both opposed the bill.

McCain's performance won plaudits from conservatives. Former prosecutor Andy McCarthy, writing in National Review online, an influential conservative blogsite that has often been very critical of McCain, said the surveillance vote showed why the Arizona senator should be the next president.

"It showed about as starkly as it can be shown that when it comes to [picking the candidate] who understands the threat we are facing and who is more fit to be trusted with responsibility for protecting American lives, there is no comparison here: McCain is so head-and-shoulders above Obama and Clinton, it's hard to quantify," he wrote.