The goal of the GOP is to distract resources attention from McCain’s plans to continue as Bush III. McClellan in his book, “What Happened” disclosed the scope of the President’s propaganda effort. The DoD emails show there was extensive coordination to achieve partisan legal objectives. The same continues in the McCain Campaign.

One of McCain’s advisers released a statement ( “Holtz-Eakin comment”, ‘the statement” ) about McCain’s beliefs on still-secret NSA activity:

”Douglas Holtz-Eakin, top adviser to Republican presumptive presidential nominee John McCain, posts letter online saying that McCain believes that Pres Bush's program of wiretapping without warrants is lawful”

From:

"Adviser Says McCain Backs Bush Wiretaps," New York Times; June 6, 2008 Charlie Savage

Note:

[ a ] the key word, “believes”. This is not a legal assertion, nor a conclusion of law.

[ b ] the source: Not McCain, a second hand retelling of what McCain believes, not a direct propaganda statement from the GOP or telecoms.

[ c ] “the program” and “Presidential activity” is arbitrarily, narrowly defined as the “program of wiretapping without warrants”.

The DoD emails show there is NSA telecom connections to the DoD military analysts. McCain’s advisors are largely mirroring the personnel, organizations, and contacts within the DOD emails. The McCain camp appears to be duplicating the President’s propaganda through Feith, the DoD military analysts, and the White House public relations office.

The GOP, McCain, and telecoms are attempting to change the focus from (a) whether all the NSA activity was or wasn’t illegal; to (b) whether the disclosed activity was or wasn’t within an exception to the warrant requirement. The President and McCain cannot argue that any of the exceptions to the warrant requirement apply. These exceptions are only afforded through FISA, which the President says does not apply. The President and McCain can’t have it both ways: Arguing FISA does not apply and he can ignore the FISA court; but then use the AUMF to say the FISA exceptions are applicable.

McCain’s beliefs have no bearing on whether the State Attorney Generals will or will not prove the telecoms have violated State private laws. Congress has no Constitutional power or role to mediate contract disputes between private citizens and NSA telecoms. This is an exclusive judicial power. McCain as Senator or President has no role in how the court adjudicates these matters.

The statement shows McCain is broadening the US of the military analysts and propagandists McClellan disclosed in his book. What Holtz-Eakin says or McCain believes are distractions from (a) the FISA requirements; and (b) the NSA activity.

Prohibited Statements

The attorney standards of conduct do not permit counsel to release conclusions of law through others that counsel are not permitted to make.

It will be interesting to explore which legal firm was providing McCain with talking points on the NSA litigation. Legal counsel connected with the NSA, telecoms, and FISA violations are concerned their clients may be implicated with war crimes.

The Holtz’-Eakin statement smacks of being an artful way to bypass various restrictions on legal counsel, and present a conclusion of law by a Senator, but without McCain directly saying, “What the President did was legal.”

One question is whether anyone on the McCain campaign is making a statement of law which is an inappropriate violation of the attorney standards of conduct. Only the court may make a public statement about the lawfulness of activity under jurisdiction of the court.

Part of GOP Agenda To Distract Attention From Illegal Activity

Notice the misdirection from the legal standards to questions of belief. Geneva, not a belief, is the legal standard to adjudicate war crimes. FISA, not a speculative threat or a belief, is the standard to evaluate lawfulness of domestic surveillance.

McCain is shifting attention from the illegal activity, to whether or not his debate is or is not grounded in reality. This is similar to the President’s smokescreen on Iraq WMD. The President said he believes Iraq had WMD. The President was wrong and making an irrelevant argument.

Even if there was evidence of WMD, the President has not provided (the required) evidence there was an imminent threat. The Senate Phase II failed to focus on Geneva, and chased the speculative question whether someone’s beliefs in public statements were or were not reasonable. That was an irrelevant exercise

The comment mirrors other hints that there will be cursory enforcement of the FISA requirements. Mukasey said any activity under the DOJ OLC memoranda – POW abuse, rendition, FISA violations – must be lawful because the DOJ OLC said it was. It remains to be understood what role McCain envisions for Mukasey in a McCain administration. Most likely, President McCain would invite Mukasey to continue as Attorney General, conserving Administration resources for confrontations with a DNC-controlled Senate.

Despite it having no connection with the original FISA requirements or standards, some might take seriously McCain’s opinion about the legality of the NSA surveillance. We don’t put much stock in McCain’s beliefs or legal conclusions. McCain’s Phase II report speaks for itself: It is trash.

Ongoing State Litigation on NSA Activities Shows Court Disagrees with McCain’s Belief

This is McCain’s belief about the still undisclosed NSA activities. The public and media are taking this assertion seriously not because McCain has judicial power, but because he’s a Presidential candidate. The illusion is his opinion means something.

McCain’s beliefs have no bearing on ongoing litigation. The State Attorney Generals continue to litigate. The court has not dismissed the complaints.

Meaningless McCain Statement

The public, House Judiciary Committee and some of the Senators on the intelligence committee believe American citizens still have not been provided all the details about the President’s NSA surveillance. Jane Harmon believes there are important details and programs which the President has not fully disclosed to Congress.

We don’t know the details of the NSA activities. McCain hasn’t provided confidence he’s done a complete review of all NSA programs; nor that he’s adequately qualified to determine how all those NSA-DOJ-White House programs are or are not lawful. It is speculation what activity McCain is saying he “believes” is “legal”. Without knowing all the facts of the NSA activities, it is absurd to put any weight on a personal opinion that someone believes government activity is lawful.

McCain and his advisors are changing the focus from (a) the illegal activity; to (b) whether someone’s beliefs are reasonable about a convoluted-restatement of a poorly defended, illegal surveillance program. The GOP’s misdirection objective is to create confusion; and spark irrelevant over whether the program definition, laws, or conduct are or are not adequately characterized. The debate is irrelevant. These are judicial, not voting questions.

The United States has not timely cooperated with legal discovery. These US government delays appear linked with a criminal enterprise. The courts do not appear inclined (yet) to charge legal counsel with contempt of court for delaying legal review of the NSA illegal activity.

Adverse inferences are warranted because the President, GOP, and NSA have not fully cooperated with legal oversight under FISA; nor have they timely provided all information required to adjudicate these matters. The Congress is complicit and has not timely provided information to the public to independently monitor Congressional oversight.

McClellan in What Happened and the DoD emails hightlight Presidential policies of delay, obfuscation, and defiance toward the courts and legal requirements. The GOP goal through McCain is to continue thwarting oversight investigations, undermining confidence they are serious about governing lawfully.

McCain’s beliefs do not deter the Italian war crimes prosecutor. We believe McCain and Mukasey should be adjudicated with war crimes. The Italian War crimes prosecutor does not disagree, and continues prosecuting Americans for alleged war crimes.