Domestic Surveillance

The Foreign Intelligence Surveillance Act (FISA) was created in 1978, and intended to give the President the power to wire-tap telephone conversations relating to suspected criminal activity of foreign origin. President Bush has correctly argued that FISA is outdated and too restrictive in the post-9/11 world. However, the President is given incredible leeway to obtain a warrant in order to legally wire-tap. Not only does the President have a 72 hour emergency window after a wire-tap to get a warrant from a judge, which are rarely rejected, in war time the President has 15 days to notify Congress without the need for a warrant, and can then ask for an indefinite extension to continue the surveillance legally. Unfortunately, the President decided against approaching a judge or Congress after 9/11 to invoke his FISA powers in the interest of national security. He violated the separation of powers as defined in the Constitution and broke the law. This behavior is decidedly not conservative because it is an unequivocal expansion of federal and executive authority.

The argument made by the President to justify his actions may be well intended and honorable on its face, but why didn’t he simply get a warrant, which he most certainly would have been granted immediately following 9/11? The secret FISA court grant wire-tapping warrants ex post facto on a regular basis, and rarely challenge such requests. President Bush argues that FISA would not act quickly enough for the number of warrants that would have been required, and Congress may not have granted all of his requests for reforming and updating surveillance rules. President Bush has not even made an attempt to improve FISA, like what was done for domestic law enforcement and intelligence gathering through the PATRIOT Act, which was passed into law in a matter of days after 9/11. Congress would have easily and quickly approved any changes to FISA the President requested in the days following 9/11, maybe even having it as a part of the PATRIOT Act. All it would have taken was a submission by the President to Congress outlining the provisions he would like to see in the revised act. Why didn’t President Bush and his Administration propose FISA reform four years ago when the domestic surveillance began and subsequently became illegal with no congressional or judicial oversight?