Surveillance powers unlikely to change with new president

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?