NSA-gate: What did Obama do?

[ucrdem]

10. Yes, the FISA bill was submitted in May '77 and signed into law by Carter in Oct. '78,

per stevenleser's piece linked in the OP. A little more on the history:

I mark the beginning as May 18, 1977, the day Ted Kennedy submitted the FISA bill to the Senate. The FISA bill, also known as the Foreign Intelligence Surveillance Act is describe in Wikipedia as prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" which may include American citizens and permanent residents suspected of espionage or terrorism. In practice, it sets up secret courts through which intelligence agencies can obtain warrants for surveillance of individuals and groups suspected of engaging in any kind of espionage and foreign sponsored or connected terrorist activities harmful to US National Security.

Six Democrats and three Republicans cosponsored the bill and it was signed into law by President Jimmy Carter October 25th, 1978.

Hearing about FISA in a vacuum without any other information would probably cause most people to believe that FISA has the strong potential to violate the fourth amendment protections against unreasonable search and seizure. In fact, FISA was created to strengthen the fourth amendment and I will explain how.

FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.

Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.