The McCain campaign got back to me on McCain’s FISA position and, putting it succinctly as possible, a staffer says this: First, current legislation is unclear about whether or not the President has the authority to execute warantless wiretaps. In absence of clear legislation, they argue, the president retains the authority. (Sort of an interesting take on “powers not enumerated,” but anyway…) McCain “does recognize, and has consistently recognized,” that Congress needs to pass a law clarifying this. He doesn’t support blanket immunity for breaking the law, then, but argues that there was no underlying law to be broken, thus no basis for a suit. I’m paraphrasing, based on a day-long email exchange.
There is, as my college humanities professor liked to say, “internal consistency” to this answer. But that’s only because internal consistency means you take for granted that first assertion. It’s like saying “Pigs can fly, if define flying as snuffing through the mud.” Actually, it’s more like saying, “It is unclear whether or not pigs can fly, but in the absence of a clear definition of flying, we say they can.”
No matter whether or not pigs can actually fly, under McCain’s definition of presidential authority, Americans’ rights could get crapped on.