EDITORIAL: McCain fumbling FISA

When it comes to the Foreign Intelligence Surveillance Act (FISA), John McCain and Barack Obama could hardly be farther apart on the substance, especially on the issue of retroactive liability protection for telecommunications companies that helped the federal government wiretap terrorist suspects after September 11. Mr. McCain favors protecting telecoms from such frivolous lawsuits; Mr. Obama, siding with the trial lawyers, wants the lawsuits to go forward. But Mr. McCain and his campaign have mishandled the issue and created needless confusion about the candidate’s position.

The most recent example was a firestorm created by Chuck Fish, a McCain surrogate who went to a conference held in New Haven, Conn. last month titled “Computers, Freedom and Privacy.” Mr. Fish made comments suggesting that the firms should only receive immunity in exchange for congressional testimony about their work in conjunction with the surveillance program - raising the prospect of a lengthy, continuing public spectacle or “closed” hearings in which details of top-secret U.S. anti-terror surveillance programs are leaked to the press.

In late 2005, the New York Times publicly exposed the existence of the secret National Security Agency (NSA) program for warrantless wiretapping of terrorists. In the weeks that followed, Mr. McCain went on MSNBC and Fox News Channel to register his objections to the program. But after President Bush mounted a vigorous defense, Mr. McCain reversed himself and declared his support for the president using “whatever technical means necessary in order to make sure we make America safe.”

On the FISA issue this year, Mr. Obama and the Democrats have handed Mr. McCain a golden opportunity to clearly explain his differences with the Democrats on a critical national security issue: Mr. Obama puts the ideological interests of the ACLU and the financial interests of the trial lawyers first. Mr. McCain, by contrast, understands that the first priority must be doing whatever is necessary to prevent mass-casualty terrorist attacks against this country. To his great credit, Mr. McCain has in recent months left the campaign trail to return to Washington to vote in favor of strengthened authority to wiretap terrorists. But beyond that he has avoided pressing the issue against Mr. Obama and the Democrats in any kind of sustained, public way. Then, last month, Mr. Fish stepped into the void - disastrously. Since then, Douglas Holtz-Eakin, a senior advisor to the McCain campaign, has effectively repudiated much of the substance of Mr. Fish’s New Haven remarks in a series of blog postings. That’s good, but not nearly enough. The American people need to hear some straight talk from Mr. McCain himself directly explaining his differences with Mr. Obama over FISA.