Pres. Obama Signs FISA Extension — AP

Although the White House “Signed Legislation” page is not reporting it and CNN is not reporting it, as of 22:17 on 12/30/12, the Associated Press is reporting that President Obama has signed the legislation extending those few provisions of the Foreign Intelligence Surveillance Act (FISA) that were scheduled to sunset tomorrow. It was a foregone conclusion that he would sign it. Also, I had predicted that he would do it at a time and in a manner to draw the least possible attention to his action. At the risk of going against the blogosphere, I will opine that this was a necessary and reasonable action. I would be glad to discuss why I said that.

The President’s action extends Title VII of the Foreign Intelligence Surveillance Act of 1978, <<NOTE: 50 USC 1881-1881g.>> , but that is confusing because it is codified as Subchapter VI (not “VII”) of Chapter 36 of Title 50 of the United State Code. In any event, it is the subchapter known as “ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE UNITED STATES.”  The Associated Press got it dead wrong when they reported:

The law does not apply to Americans. When Americans are targeted for surveillance, the government must get a warrant from a special 11-judge court of U.S. district judges appointed by the Supreme Court.

In context, the AP made that statement about FISA in general.  Even if we apply it just to the bill that the President just signed, the statement is still wrong . Section 1881c, which was just extended, is entitled: “Other acquisitions targeting United States persons outside the United States.”  That extended provision most certainly does apply to Americans, although only if they are outside of the United States.  The core of FISA, which was not scheduled to sunset, also most certainly applies to Americans – or “United States persons” in the nomenclature of the statute – and it always has.

Here is a copy of the actual legislation that passed both houses by wide margins:

H.R.5949 — FISA Amendments Act Reauthorization Act of 2012 (Enrolled Bill [Final as Passed Both House and Senate] – ENR)

–H.R.5949–

H.R.5949

One Hundred Twelfth Congress
of the
United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the third day of January, two thousand and twelve

An Act

To extend the FISA Amendments Act of 2008 for five years.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `FISA Amendments Act Reauthorization Act of 2012′.

SEC. 2. FIVE-YEAR EXTENSION OF FISA AMENDMENTS ACT OF 2008.

(a) Extension- Section 403(b) of the FISA Amendments Act of 2008 (Public Law 110-261; 122 Stat. 2474) is amended–

(1) in paragraph (1), by striking `December 31, 2012′ and inserting `December 31, 2017′; and

(2) in paragraph (2) in the material preceding subparagraph (A), by striking `December 31, 2012′ and inserting `December 31, 2017′.

(b) Conforming Amendment- The heading of section 404(b)(1) of the FISA Amendments Act of 2008 (Public Law 110-261; 122 Stat. 2476) is amended by striking `DECEMBER 31, 2012′ and inserting `DECEMBER 31, 2017′.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

[Professor William Snyder]

UPDATE:

Here is a September 12, 2012, report from the Congressional Research Service explaining the renewed provisions of FISA: Reauthorization of the FISA Amendments Act