MSNBC, Fox News repeated false assertion that without congressional action, FISA will expire

Summary: Fox News host Martha MacCallum and MSNBC host Monica Novotny repeated the false assertion that if Congress does not reauthorize the Protect America Act (PAA), the Foreign Intelligence Surveillance Act (FISA) of 1978 would expire. In fact, what is set to expire are the PAA's revisions to FISA, which, among other things, expanded the government's authority to eavesdrop on Americans' domestic-to-foreign communications without a warrant.

Discussing President Bush's February 14 press conference urging Congress to reauthorize the Protect America Act (PAA), Fox News host Martha MacCallum and MSNBC host Monica Novotny repeated the false assertion that if Congress does not reauthorize the PAA, the Foreign Intelligence Surveillance Act of 1978 (FISA) would expire. In fact, what is set to expire are the PAA's revisions to FISA, which, among other things, expanded the government's authority to eavesdrop on Americans' domestic-to-foreign communications without a warrant.

After Bush's press conference, Novotny stated on MSNBC, "President Bush there pressing Congress to extend the FISA law. The president saying that U.S. intelligence gathering will be compromised if Congress fails to extend FISA by Saturday, which would allow it to expire if they don't extend it." On Fox News, MacCallum claimed, "President Bush has been very passionate about maintaining FISA, saying that it's a needed tool in the war on terror to protect our country." She went on to claim that "he's urging Congress to get together and find a way to continue that bill in order to keep the country safe."

In fact, as House Speaker Nancy Pelosi (D-CA) noted in a February 13 statement, "[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." Further, a November 14 New York Times article reported:

The lapsing of the deadline would have little practical effect on intelligence gathering. Intelligence officials would be able to intercept communications from Qaeda members or other identified terrorist groups for a year after the initial eavesdropping authorization for that particular group.

If a new terrorist group is identified after Saturday, intelligence officials would not be able to use the broadened eavesdropping authority. They would be able to seek a warrant under the more restrictive standards in place for three decades through the Foreign Intelligence Surveillance Act.

Media Matters has documented numerous instances of media outlets falsely reporting that the government's ability to eavesdrop on the communications of suspected terrorists would expire if the PAA were not extended.

From the November 14 edition of Fox News' The Live Desk with Martha MacCallum:

MacCALLUM: First, let's go to the White House and take a look at the podium. President Bush is about to remark on the Protect America Act. There's an effort to extend what's known as the FISA Act, and President Bush will come out and talk about that in just a couple minutes. We'll take you back there as soon as that gets under way.

[...]

MacCALLUM: All right. President Bush has been very passionate about maintaining FISA, saying that it's a needed tool in the war on terror to protect our country. Today, he's urging Congress to get together and find a way to continue that bill in order to keep the country safe.

From the 1 p.m. ET hour of the November 14 edition of MSNBC Live:

NOVOTNY: President Bush there pressing Congress to extend the FISA law. The president saying that U.S. intelligence gathering will be compromised if Congress fails to extend FISA by Saturday, which would allow it to expire if they don't extend it. This is, of course, the wiretapping law that allows the government to eavesdrop on phone calls and emails in the United States, in cases where they suspect terrorist activity. The president even said -- the president is scheduled to embark on this trip to Africa, but the president even said if he needs to stay here to press Congress on this, he will stay here and delay that Africa trip. So, we're going to continue to follow that, of course, and bring you more details.

—J.H.