During a speech yesterday at the conservative Manhattan Institute, Vice President Dick Cheney claimed that Congress “does have a way, at times, of missing big opportunities and losing sight of big responsibilities.” As an example, Cheney criticized House Democrats for allowing the Foreign Intelligence Surveillance Act (FISA) to expire:
In the field of international security at present, the House leadership has allowed a critical statute to expire — the FISA, or Foreign Intelligence Surveillance Act, a law that gives intelligence professionals the tools they need to monitor terrorist-related communications.
However, there is one slight kink in Cheney’s argument: House Democrats have not allowed FISA to expire. FISA is the law passed in 1978 — and still on the books — that governs the federal government’s communications monitoring. House Democrats actually “allowed” the Protect America Act (PAA) to expire, a revision to FISA that expanded the government’s authority to eavesdrop on Americans’ domestic-to-foreign communications without a warrant. Indeed, as House Speaker Nancy Pelosi (D-CA) noted after the House voted to reject the PAA’s extension:
[T]he underlying Foreign Intelligence Surveillance Act, which provides for the surveillance of terrorists and provides that in emergencies surveillance can begin without warrant, remains intact and available to our intelligence agencies.
In the speech, Cheney seemed to be referring to the PAA, saying “[t]his is not an old law we’re talking about.” But in claiming that FISA “expired” in prepared remarks, Cheney is advancing the false White House line that because House Democrats did not extend the PAA permanently — with immunity for telecommunications companies — the government can no longer eavesdrop on suspected terrorists.
In fact, not only did the White House and their GOP allies in Congress reject the Democrats’ plan to temporarily extend the PAA, the government still has the authority under FISA to listen in on the communications of suspected terrorists — without a warrant for 72 hours in emergency situations — and with a warrant thereafter.
Perhaps Cheney was engaging in a little wishful thinking because it was, after all, the White House that figuratively allowed FISA to “expire” when it authorized warrantless spying on Americans.