GovernmentExecutive.com

Editor's note: This article is excerpted from a National Journal story exploring how much of a difference the next president will be able to make in a number of policy areas.

GOP presidential candidate John McCain believes that the collection of foreign intelligence is an inalienable presidential authority. He hasn't opined whether Bush broke the law when he authorized warrantless surveillance of communications between Americans and foreigners after the 9/11 terrorist attacks, but the Arizonan's campaign has invoked Article II of the Constitution when it comes to the president's authority to determine the scope of surveillance.

McCain supported major amendments to the Foreign Intelligence Surveillance Act that significantly expanded the executive branch's ability to intercept phone calls, e-mails, and other electronic data going through the United States. There is no reason to believe that as president he would roll back the powers that are now in place.

Nor is there reason to believe that Democratic candidate Barack Obama would do so. Although he initially opposed the FISA changes, and was also against the amendment that grants immunity to telecommunications companies that aided in warrantless surveillance, he reversed himself and voted for the bill this summer.

Politically speaking, Obama had more to lose by voting against the FISA amendments than he did by voting for them. "When you talk to people close to the campaign about this, they say stuff like, 'Come on, who really cares about that issue?' " according to Lawrence Lessig, a professor at Stanford University Law School and the founder of its Center for Internet and Society. He quotes Obama's team as saying, "Does anyone think the Left is going to vote for McCain rather than Obama? This was a hard question. We tried to get it right. And anyway, the FISA compromise in the bill was a good one."

John Brennan, Obama's intelligence adviser and a former senior CIA official, favored amending FISA and granting immunity to the telecom companies. Even though that initially put him at odds with his candidate, Brennan, like many other intelligence professionals, thought that leaving the companies open to lawsuits would make them less likely to assist the government in the future. Obama finally agreed with that assessment.

A vote against enhanced surveillance would have diminished any president's intelligence powers. Bush assured the telecoms that their assistance was legal. He may have been wrong, but he stood on the president's constitutional authority, which, in the national security domain, has gone largely unchallenged. If Obama had voted against the FISA bill, he would have undercut the authority of the office that he seeks. If he didn't do so as a candidate, why would he do it as president?

COMMENTS

• Spelling B, thank you for that correction. I, too, am chagrinned for Barack’s signing as I found out in GovExec’s “Senate passes FISA bill after yearlong dispute”, 9 Jul 08. I point that article out not only because my personal feelings expressed there match your own but also for the EXCELLENT expert response sent in by Rich Zellich; which I hope others will view once more. The only consolation I received from that passage was from the GovExec article “National security observers explain FISA ins and outs”. While it will be sometime before the foul taste leaves my mouth, I can stomach the passage since the legislation expires in four years and I anticipate more headlines on abuses. Perhaps this will be sufficient time and distance for the “fear” to subside and common sense to regain control. Once more, to that Thin Blue Line (and the Green ect…) out there, while I greatly appreciate your job and adherence to the letter of the law and I understand removal or expiration of this tool may remove the single most valuable tool in your tool kit; I still wish that tool removed. I think it not TOO far out of line to return to the previous standards of checks and balances observed under the Foreign Intelligence Surveillance Court control. Recent revelations aside… having been there, done that, and gotten the T-Shirt, I must ask again; “Who will guard the guards?” Tip off Posted October 20, 2008 11:08 AM
• I realize that it is totally unfair to assume that someone who does not possess spelling or grammatical competence is an idiot. And yet there is often a correlation. Tip off, thanks for a fine review of the constitutional rights stolen from us by our president and congress. (You left out the abridging of freedom of speech, with all presidential protestors shunted to the dark side of the moon, where they won't pose a threat.) I was deeply disappointed that Obama reneged on his promise to vote against the revised FISA bill, allowing businesses (and the president) to get away with illegal spying. When I think of the courage of the men and women who fought for our constitutional rights, the speed with which our current population is happy to fling those rights away for no good reason disgusts me. Speller B Posted October 16, 2008 4:24 PM
• Perhaps you misunderstood me, Skeeter, amidst all the buzz. My comment was not about the current candidates (although you and I will continue to agree to disagree) but rather about our vaunted two-party system; for the more power you give the incumbent (regardless of party affiliation), the worse off you may feel when that system asserts itself and you are left with the “other” candidate, like Charles, in charge. That’s the problem of giving away that which you do not know the value of. As the old adage reminds us, “You never know what you got until its gone.” As far as rewriting the Constitution, you don’t have to worry; the incumbent already did that with attempts to change the 1st (Freedom of Religion) and modifying our 4th (privacy, search and seizure without probable cause), 5th (due process) 6th and 7th (trial by jury, right to hear testimony, face accusers, know the charges against you), 8th (cruel and unusual punishment), 11th (JUDICIAL power over foreign nationals,), and 14th (prohibiting states from abridging citizens' privileges or immunities and rights to due process and the equal protection of the law) amendment rights. That makes for a fairly comprehensive rewrite, would you not agree? Well, if not now, then perhaps the next time a Blue Dog sits in that executive seat you might reconsider what you gave away? As for the current candidates, I do not blame Shrub in toto for this situation; for, as was said once before, “Forgive him, for he knows not what he does.” And as for his party nemesis, the current opposition candidate, IF he did attempt a rewrite, at least a former president of the Harvard Law Review will understand the Constitutional implications of his actions, and he … darned sure couldn’t do any worse! Personally, I can only hope and pray that the incoming administration, regardless of party affiliation be he maverick or beltway neophyte, will eventually root out the current entrenched party apparatchiks and restore what we lost in that mad dash … the blind scramble for safety. Tip off Posted October 16, 2008 9:13 AM