Drew, Mark can speak for himself, of course. But, with due respect:
1. Senator McCain does not allow for a ticking time bomb exception. He has grudgingly conceded that in a ticking bomb scenario an interrogator would probably resort to rough tactics—a concession he makes only after arguing, incongruously, that rough tactics never work.
In any event, his legislation made aggressive interrogation in the ticking-bomb situation illegal—he is instead relying on the interrogator to break the law and the president not to enforce it (either by pardon or by persuading the Justice Department not to prosecute—which, naturally, would be portrayed as outrageous political interference if it ever happened). And that is only if it turned out that the interrogee’s information led to the thwarting of a terrorist attack—which, of course, the interrogator could not know before making the decision to violate McCain’s law … thus strongly incentivizing him against doing so regardless of how many innocent lives might be lost.
2. McCain’s amendment, which extends Fifth Amendment rights to overseas terrorists, also makes it entirely plausible that the federal courts will eventually deem those terrorists entitled to Miranda warnings (which the Supreme Court recently held, in the Dickerson case, are part of the core Fifth Amendment guarantee). There is nothing conservative about extending judicially created rights to unlawful alien enemy combatants making war on the United States under circumstances where intelligence is our only defense.
3. There is, furthermore, nothing conservative about the position that “individual rights” created in the Constitution (a compact between the people of the United States and the government they created) extend to illegal aliens. To compare that to Bill Buckley’s position on drug legalization is about as fatuous as it gets.
4. The Gang of 14 deal directly resulted in (a) several Bush nominees not being confirmed, and (b) making it even easier for Democrats to block Bush nominees once control of the Senate switched to Democrats. The filibuster is not an appropriate basis to block a presidential nominee to the courts. And, even if that were not the case, since McCain has a long record of voting to confirm very liberal judges and justices, it is cold comfort to hear that he would filibuster an unacceptable nominee “if he felt he had to.”
5. McCain—who is lauded as consistently pro-life—is the only GOP candidate who has tried to suppress the speech of pro-life groups. He did it recently and assiduously, a years-long campaign in the Wisconsin Right to Life case, in which he filed amicus briefs in the Supreme Court in an effort to muzzle a pro-life group that wanted to get its message out regarding pro-abortion legislators. (See here and here.) As if that were not enough, the underlying purpose of his crusade was to further the assault on Free Speech rights spearheaded by his McCain/Feingold legislation. (Query whether you believe McCain/Feingold is also “driven by an inherently conservative respect for individual rights”?)