Evolution of the Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act, the 1978 law that is supposed to govern surveillance of foreign intelligence targets within the U.S., has had an unusually dynamic legislative history. It has been modified in a hundred ways on at least a dozen occasions, the Congressional Research Service reported (pdf) this week.

Despite the demonstrated adaptability of this statute, the Bush Administration chose to conduct its NSA Terrorist Surveillance Program outside of the legally binding FISA framework and has not sought to amend it.

“Abiding by FISA does not mean clinging to [an obsolete] 1978 structure,” emphasized Rep. Jane Harman, ranking member of the House Intelligence Committee at a hearing this week. “FISA has been modernized.”

“Each time the Administration has come to Congress and asked to modernize FISA, Congress has said ‘yes’,” she recalled.

“Congress extended the time for obtaining emergency warrants so that surveillance can begin 72 hours before the government obtains a warrant. Congress expanded the authority to conduct ‘trap and trace’ surveillance on the Internet. Congress expanded the ability to get ‘roving John Doe’ wiretaps for terrorists who switch cell phones.”

“The surveillance the President wants to do can and must be done completely under the current FISA system,” Rep. Harman concluded.

She asked the Congressional Research Service to provide a listing of prior amendments to the FISA, which turned out to be a 29 page tabulation.

See “Amendments to the Foreign Intelligence Surveillance Act (FISA), 1994-2006,” Congressional Research Service, July 19.

The prepared testimony from a July 18 House Intelligence Committee hearing on “Modernization of the Foreign Intelligence Surveillance Act” is here.

The Senate Judiciary Committee has scheduled a hearing on “FISA for the 21st Century” on July 26.