An Aug. 16 NewsMax column by Ronald Kessler claimed that "Hillary Clinton's and Barack Obama's greatest vulnerability in the general presidential election" is "their vote against revising the Foreign Intelligence Surveillance Act (FISA)":
In voting this month against the measure, both senators opposed a continuation of the government's longstanding ability to monitor, without a warrant, calls between terrorists situated in foreign countries.
What if these two Democratic presidential candidates prevailed? If Osama bin Laden placed a call to an al-Qaida member in London to arrange a nuclear hit on Manhattan, a warrant would first have to be obtained. By the time that happened, the call would have been over.
But Kessler offers no evidence that either Clinton or Obama ever specifically opposed the government's "ability to monitor, without a warrant, calls between terrorists situated in foreign countries." In fact, as Media Matters notes, Clinton voted in favor of a version of the bill -- introduced by Democrats -- that would have reversed a reported ruling limiting the administration's ability to intercept certain foreign-to-foreign communications without a warrant. The bill Clinton voted against was a much broader bill to amend FISA to give the administration authority to intercept certain domestic-to-foreign communications without a warrant.
Further, as the New York Times reported, the bill that was passed "could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records."
Even using FISA's emergency provision, it takes at least two days to prepare the paperwork and obtain all the necessary approvals. Because a call was not intercepted in time, millions of Americans could have been killed.
"You can't go back and ask for a FISA for a conversation that's already occurring," says a counterterrorism operative. "That's the fundamental issue. When they pick up on a U.S. conversation, they can't tell these two guys who are talking: ‘Hey, hold on a minute while we go get a FISA.' A conversation is a conversation; it happens, and then it's lost."
In fact, FISA has long allowed the government to obtain warrants for wiretapped conservations up to 72 hours after the conversation has taken place.