Columbia International Affairs Online
CIAO DATE: 12/5/2007
Modernizing the Intelligence Surveillance Act
November 2007
Abstract
In December 2005, the New York Times reported,1 and President Bush confirmed,2 that the National Security Agency (NSA) had been conducting electronic surveillance of international communications, to or from the United States, without obeying the Foreign Intelligence Surveillance Act of 1978 (FISA).3 The disclosure ignited a wildfire of political and legal controversy, which continues to generate heat, if not light, today.
Almost immediately after the surveillance was revealed, Congress responded in its oversight and lawmaking capacities, demanding information from the executive branch, and holding hearings on several bills.4 The Bush Administration used those hearings to make the case for “FISA modernization” – statutory amendments that would, at a minimum, change the law to authorize explicitly what NSA had been doing since the fall of 2001. The government’s central claim was that 30 years of technological change had artificially enlarged FISA’s scope; the amendments it proposed were designed to restore the statute’s original balance.
The policy questions began to crystallize in spring 2007, when the Bush Administration proposed a comprehensive set of legislative amendments, known as the FISA Modernization Act, and the Senate Intelligence Committee held an open hearing on the proposal.5 That summer, with the Modernization Act still pending in Congress, the Administration made a hard push for a more limited set of changes to FISA, which became law in August 2007 as the Protect America Act (PAA).6
