The Foreign Intelligence Surveillance Act or FISA was passed by Congress in 1978 in response to abuses by the Nixon administration in the use of wiretapping technology. Nixon had used wiretapping to keep tabs not just on foreign and domestic terrorists, but also on his domestic political adversaries.
FISA essentially set up a secret court system to oversee future wiretapping by intelligence agencies to prevent these kinds of abuses from happening again.
But because it was written in 1978, before the advent of cell phones, e-mail, and much more, it is now horribly out of date. It was in bad need of updating prior to 9/11. Afterwards, the Bush administration used the fact that the law was outdated as an excuse for tossing it aside and going forward with a modern surveillance program outside the realm of the FISA courts. This was wrong.
But the question now is how wrong was it? If they had ditched the FISA courts so they could go back to Nixon-style monitoring of their political adversaries, I would say that it was a very serious and possibly impeachable offense. However, if they simply did what they said they did and ditched FISA so they could more aggressively pursue foreign terror suspects in the aftermath of an attack on our country, then I think we would be hard-pressed to make the case that they deserve criminal punishment for those actions today.
The caterwauling I’m hearing about warrantless wiretapping threatening our Fourth Amendment rights against illegal search and seizure makes no sense to me. I have never had a problem with the government using wiretaps to keep track of criminal suspects and the fact that they needed to expand that effort in response to 9/11 seems like common sense to me. What I have always insisted, however, is that we have a check in place (i.e. the FISA court) to oversee these intelligence activities and make sure that they are not be abused ala Nixon.
It seems to me that the FISA bill that Obama supported satisfied that concern. The fact that it also provides things that President Bush wanted doesn’t make it automatically bad. I’m sure there are parts of the bill that are not ideal and should be changed. But we can’t get everything we want now with a Republican president and a 50-50 Senate. So we have to compromise because that is the way that government works. And the option of falling back on the outdated 1978 FISA law was a non sequitur and would have made Democrats look weak on terrorism right before the general election.
I think it is pretty clear that laws were broken by the administration after 9/11. But that could be like trying to fine somebody for speeding when he was trying to drive his sick wife to the hospital. The general public isn’t going to go along with it unless you have evidence that they were abusing the wiretapping program.
The fact that there are people who are now using this issue to say that they will not support Obama is appalling. They need to get some perspective.