Repeat after Me: FISA Doesn’t Expire

One of the hazards of running a grassroots campaign is that sometimes those grassroots supporters raise a ruckus if you don’t live up to your primary campaign promises. The New York Times reports that 7000 of Obama’s supporters (the number is up to 13,000 as I write this) have created a group on Obama’s own campaign website to pressure him to reject the “compromise” FISA legislation that the House passed last month. Obama declared his opposition to any FISA legislation that included retroactive immunity back in February, and many of Obama’s liberal supporters feel betrayed that while he is still nominally against the immunity provision, he has signaled a willingness to support the overall legislation whether or not the immunity provision is stripped out.

Not surprisingly, the Obama campaign’s response is both lame and misleading:

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.”

I feel like a broken record, but FISA, which was enacted in 1978 and updated in 2001, doesn’t expire. It will remain the law of the land indefinitely, whether or not Congress passes new legislation this month. The Protect America Act, which was passed last August, has already expired – back in March. As I pointed out at the time, the expiration of the PAA simply returned us to the permissive surveillance regime that Congress enacted with the Patriot Act in 2001. That regime isn’t perfect, to be sure, but it leaves our intelligence community with plenty of tools to spy on terrorists.

What Mr. Craig is most likely referring to is the fact that the first surveillance “authorizations” under the PAA will begin expiring in August. These “authorizations” are good for a year, so any authorizations approved in August 2007 will expire in August 2008. But that simply means that intelligence officials will have to apply for a FISA order under the still fairly permissive Patriot Act rules. Those rules include a lower legal threshold than exists under ordinary criminal wiretaps, and an “emergency” provision allowing wiretapping to begin immediately and authorization to be sought after the fact. The net result will be a modest increase in the NSA’s paperwork burden, but there’s no reason to think any reasonable surveillance activities will cease. (Some indiscriminate vacuum-cleaner surveillance may have to be stopped, but that wouldn’t be a bad thing)

Indeed, Pres. Bush himself praised the changes Congress made to FISA in the wake of the September 11 attacks, noting that the Patriot Act’s FISA amendments “will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones” and makes the intelligences community “able to better meet the technological challenges posed by this proliferation of communications technology.” That’s the legal regime that will apply if Congress declines to enact a FISA bill this year. There hasn’t been a major terrorist attack on American soil in the six and a half years that legal regime has been in place. Surely it will serve us well enough for another six and a half month until Obama himself is likely to be sitting in the Oval Office and can negotiate a FISA reform more consistent with his supposed liberal principles.