The ‘Old Law’ Myth

President Bush has argued that he needed to ignore the Foreign Intelligence Surveillance Act because it was an old law. From his January 26 press conference:

[T]he FISA law was written in 1978. We’re having this discussion in 2006. It’s a different world. And FISA is still an important tool. It’s an important tool. And we still use that tool. But also — and we — look — I said, look, is it possible to conduct this program under the old law? And people said, it doesn’t work in order to be able to do the job we expect us to do.

Bush gives the impression that he’d very much like to have the program work within the confines of the law but it’s just too old to accommodate it. That isn’t true.

Bush’s warrantless domestic surveillance program began in October 2001. Amendments to the law were requested from Congress by the Bush administration, and enacted with Bush’s signature two months later.


The December 2001 amendments to FISA aimed to provide additional flexibility in emergency situations. For example, the FY 2002 Intelligence Authorization Act amended FISA to extend the amount of time that the government could conduct surveillance without securing a warrant from 24 to 72 hours:

The conferees agreed to a provision to extend the time for judicial ratification of an emergency FISA surveillance or search from 24 to 72 hours. That would give the Government adequate time to assemble an application without requiring extraordinary effort by officials responsible for the preparation of those applications.

When President Bush says that FISA is an “old law,” it’s not true. It’s a law that was recently amended at his request and by his signature. Bush’s decision to circumvent the law was not one of necessity — it was his choice.