Candidates still not asked about wiretaps, FISA, or telecom immunity in debates

Despite the ongoing controversy surrounding the Bush administration's claims that executive power alone allows it to engage in warrantless domestic surveillance that public officials and legal experts across the political spectrum have said violates the Foreign Intelligence Surveillance Act (FISA) and the U.S. Constitution, only one question on the issue has been asked of any presidential candidate of either party during the numerous debates over the past year.

The New York Times first reported on December 16, 2005, that President Bush had issued a secret presidential order shortly after the September 11, 2001, terrorist attacks that authorized the National Security Agency (NSA) to eavesdrop on international phone calls and email communications that originate from or are received within the United States and to do so without the court approval normally required under FISA.

In August 2007, after months of heated debate over civil liberties and the administration's claim of executive power, Congress passed the Protect America Act, which, as The Washington Post reported, gave "U.S. spy agencies expanded power to eavesdrop on foreign suspects without a court order." The New York Times further reported that the act "broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants," "as long as the target of the government's surveillance is 'reasonably believed' to be overseas." According to the Times, the law "gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court." The bill contains a 180-day "sunset provision" and will expire February 1. Congress resumed debate on the issue on January 24.

One of the issues surrounding the debate over Bush's warrantless surveillance concerns the telecommunication firms that assisted the NSA program. On May 11, 2006, USA Today reported that the NSA "has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth." Following additional reporting on the issue, several organizations filed lawsuits against the telecommunications companies alleging violations of the U.S. Constitution, FISA, and other state and federal laws. In a class-action lawsuit against AT&T, the Electronic Frontier Foundation alleged that the company is "collaborating with the NSA in a massive warrantless surveillance program that illegally tracks the domestic and foreign communications and communication records of millions of Americans." On October 22, 2007, Director of National Intelligence Michael McConnell stated in an interview with the El Paso Times that "under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner."

In the wake of litigation against several telecommunication companies over their alleged cooperation with the NSA program, a debate emerged on Capitol Hill over whether to provide these companies with retroactive immunity. The Protect America Act did not include a provision granting the telecommunication companies legal immunity for their compliance with the program, and the debate continues over whether Congress should provide for such a provision when it considers the act's renewal.

However, in the numerous presidential debates conducted over the past year, not one question has been asked of any of the Democratic candidates regarding wiretapping, FISA, or immunity for telecommunications companies, and only one has been asked of a Republican candidate. At least 10 of the candidates who have participated in presidential debates in the past year have been in Congress as it has considered legislation concerning FISA, wiretapping, and the immunity issue. As Media Matters for America Executive Vice President Jamison Foser documented on November 16, 2007, the debates held prior to November 15 featured "[o]nly one question about wiretapping" and "[n]ot a single question about FISA." The sole question on the issue of wiretapping occurred during the September 5, 2007, Fox News-sponsored Republican debate and did not relate to retroactive immunity. During the debate, Fox News White House correspondent Wendell Goler asked former Massachusetts Gov. Mitt Romney about eavesdropping on mosques "even without a judge's approval."

A Media Matters review of all the nationally televised debates held since November 15, 2007 -- as well as a Democratic debate on National Public Radio, two Democratic presidential forums, and a Republican forum -- found that the pattern has continued. Not one question has been asked of any of the candidates regarding issues related to Bush's warrantless domestic surveillance program during any of the subsequent debates. The following debates were included in the follow-up review:

• The January 21 Democratic debate in Myrtle Beach, South Carolina
• The January 15 Democratic debate in Las Vegas
• The January 10 Republican debate in Myrtle Beach
• The January 6 Republican forum in Manchester, New Hampshire
• The January 5 Republican debate in Manchester
• The January 5 Democratic debate in Manchester
• The December 13 Democratic debate in Johnston, Iowa
• The December 12 Republican debate in Johnston
• The December 9 Republican debate in Coral Gables, Florida
• The December 4 Democratic debate in Des Moines, Iowa
• The December 1 Democratic forum in Des Moines (Brown & Black Forum)
• The December 1 Democratic forum in Des Moines (Heartland Presidential Forum)
• The November 28, 2007, Republican debate in St. Petersburg, Florida