Temporal Statutory Decay

Below is an excerpt from the official transcript of President George W. Bush's White House press conference Thursday morning. The President responded to a reporter's question on the Federal Intelligence Surveillance Act (FISA) as it relates to NSA wiretapping of certain telephone calls. It's hard to parse (wouldn't you hate to be the President's transcriptionist?), but Mr. Bush seems to be implying--at least in part--that the FISA statute's force of law is somewhat reduced because the law is almost 30 years old.

This would be a new and dubious legal theory, it seems to me. Dubious or not, the theory needs a name. Might I suggest we call it "Temporal Statutory Decay"? No doubt that, as the term comes into common use, it will be abbreviated (outside of scholarly publications) to "TSD".

If this novel legal approach gains acceptance, I propose that we apply it posthaste to the antiquated 1866 Mining Act, which is still in force today and still causing great destruction.

Q Mr. President, though -- this is a direct follow up to that -- the FISA law was implemented in 1978 in part because of revelations that the National Security Agency was spying domestically. What is wrong with that law if you feel you have to circumvent it and, as you just admitted, expand presidential power?

THE PRESIDENT: May I -- if I might, you said that I have to circumvent it. There -- wait a minute. That's a -- there's something -- it's like saying, you know, you're breaking the law. I'm not. See, that's what you've got to understand. I am upholding my duty, and at the same time, doing so under the law and with the Constitution behind me. That's just very important for you to understand.

Secondly, the FISA law was written in 1978. We're having this discussion in 2006. It's a different world. And FISA is still an important tool. It's an important tool. And we still use that tool. But also -- and we -- look -- I said, look, is it possible to conduct this program under the old law? And people said, it doesn't work in order to be able to do the job we expect us to do.

And so that's why I made the decision I made. And you know, "circumventing" is a loaded word, and I refuse to accept it, because I believe what I'm doing is legally right.

You can read the entire press conference transcript at the White House's offical web site.

Copyright (C) 2006 James Michael Brennan, All Rights Reserved