S. mainland. The court can reject the procedures only if it finds the plan for complying with the law as "clearly erroneous." The program may also continue for a year although the law is scheduled for renewal in six months. Warrant-less eavesdropping may begin immediately and ahead of the security court approval of the procedures (Savage).
Spur of the Moment and Secret Order
Weeks after the 9/11 attacks, President Bush signed a secret order, which authorized NSA to wiretap international phone calls and emails without a court order (Savage 2007).
It was expressly prohibited by the 1978 warrant law. President Bush claimed that war-time powers authorized him to bypass that law. In January this year, the Attorney General said that the program was brought under the supervision of the national security court. A judge allowed some form of surveillance to continue. Several months ago, however, another judge ruled that the order was unlawful. He outlawed some part of the program and prompted Congress to amend that surveillance law. In August, the House of Representative passed the bill at 60 to 28 in the Senate and 227 to 283 in the House (Savage).
President Bush's Urges
Observers from the legal sector recalled that the Military Commissions Act of 2006 expanded the power of the White House over detainees in the war on terrorism (Savage 2007). The same expansion was authorized during the Iraq war in 2002. In both occasions, President Bush abruptly urged for the expansion of his powers just before congressional recess. Each time, he warned that there could be no time to wait for the action. It happened again in the case of the Protect America Act of 2007. But former White House lawyer David Rivkin commented that it was a wise decision to restore the President's power overseas without a need for warrants. His observation was that it was those who spread rumors of panic who now complained about privacy (Savage).
Implications of the Act
The Protect America Act of 2007 compels the Department of Justice to reveal to Congress all the details of its electronic surveillance since 9/11 without a need for a court order or warrant (CNN 2007). It also requires the Department to maintain a database of all Americans subjected to eavesdropping by the government. The Terrorist Surveillance Program was a secret eavesdropping program undertaken in response to the New York attacks without the approval of an intelligence court. This court was created 30 years to monitor programs like these. It does not provide retroactive legal immunity to telecommunications companies, which cooperated with the government's surveillance work between 2001 and 2007 without a court order. Telecommunications companies are among the respondents in approximately 40 lawsuits for wiretapping violations. These details were incorporated into the FISA to replace the August bill, said to have been produced in haste and in response to pressure from the President. It was since hotly contested. Privacy and civil liberties advocates commented that the Protect America Act of 2007 gave the government greater power to eavesdrop than understood at first. It would be replaced by the Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007 or RESTORE Act. The RESTORE Act does not require court orders for government surveillance of communications outside the U.S. This is the provision even if the surveillance is performed within the mainland, as long as the target of eavesdropping is not ascertained as an American citizen (CNN).
The Attorney General and the director of national intelligence can request for an "umbrella warrant" effective for a year to conduct surveillance on foreign targets (CNN). The request is premised on a possibility of interception of American communications. The RESTORE Act expires on December 31, 2009 (CNN).
How it All Happened
There were other criticisms against the Protect America Act of 2007. One said that the title alone hinted at unsavory motives behind it (Huq 2007). It speculated that the Administration took three calculated steps to pull the Act through. It first accepted defeat for its actions. Some months later, it took the second step when it suddenly announced that the ruling to scrap the extra power had created a crisis in security and that thus required quick and legal remedial action. And the third and strongest step was the introduction of the Detainee Treatment Act of 2005 or the Military Commissions Act of 2006 through Congress. It would correct and undo the failed court decision. Behind the swift act was a parallel undoing and huge damage on the structure of accountability (Huq).
Last January, the Administration announced that the mysterious NSA Terrorist Surveillance Program would be submitted to the Foreign Intelligence Surveillance Court (Huq 2007). This Court was created by the 1978 FISA law to issue search warrants for foreign intelligence surveillance. At the time, the federal appellate courts in Ohio and California were to rule on the illegality of NSA's domestic surveillance as violations of FISA and probably the Fourth Amendment. The surprise change would shield the NSA from a ruling of illegality. There was, however, a curious development. The FISC judge did not approve part of the NSA activity. That activity somewhat targeted communication coming from overseas but cut through telecom switches in the U.S. (Huq).
Modern telecommunication separate communications into groups of data and route them through a network of connected computers (Huq 1007). Many of the biggest switches, which route international data are found in the U.S. USA Today in May 2006 reported that the NSA was then already tapping these switches. Since January this year, the Government has been pursuing "basket warrants" to intercept the data traveling through these switches without interference from the courts or Congress. The FISC judge must have objected to intercepting data from calls from overseas and ending in the U.S. The point was that NSA could generally secure a warrant for these communications. Its problem would be the absence of evidence that the person it would be targeting could be a terrorist. Critics called it "data mining," the act of extracting information from large databases (Huq).
In taking the second calculated step to justifying the Protect America Act, House minority leader John Boehner invoked the FISC ruling as justification for a new law (Huq 2007). Critics bewailed the Administration's lack of decency in using classified information on the ruling and in hiding its full details while urging for a new and prompt response to the situation. Most of all, the Administration took this calculated second step to making the urgent announcement in the last week of the Congressional session. It barred the holding of a meaningful and very important debate on the matter (Huq).
The third step was the climax. The enactment of the Protect America Act of 2007 dramatically expanded the government's authority to collect private information without prior judicial order and supervision (Huq). What critics found objectionable was not the expansion of surveillance power but the warding off of judicial or Congressional supervision. Former CIA officer Philip Giraldi succinctly described the objectionable part. The Act granted the Government "unlimited access to already protected personal information, which could be access but with judicial or Congressional supervision. Critics viewed the Administration as quite knowledgeable about the principle of checks and balances. It wanted to take exemption from that principle. It wanted to evade accountability (Huq)
The Act's being a "narrow" fix unnerved critics. It is authorized to conduct "surveillance activities towards a person reasonably believed to be outside the United States (Huq 2007)." They are quite wary about the intonations of this long phrase. Domestic surveillance has long been a cause of most disturbing abuse issues. Yet the Act permits unlimited interception of Americans' international calls and emails. The Act's most disturbing terms were "directed at." It appeared that the NSA could choose to "direct" its surveillance at a particular place outside the U.S. And intercept all U.S. calls to and from the location. In simple terms, the Protect America Act of 2007 was an open-ended invitation to gather Americans' international calls and emails (Huq).
For National Security and "Other" Purposes
Critics also said that scrutiny of the Act would show that the collection of international calls would not be limited to security purposes (Huq 2007). There is another provision, which state that national security is only one of the several purposes of an intelligence collection program. It belies the Administration's claim of performing only technical task. The FISA law completely prohibited surveillance without a prior court warrant. Yet the Act licenses it and for purposes beyond national security (Huq).
The terms "reasonably believe" are also disturbing. It clearly means that the NSA could collect domestic calls as long as it "reasonably believed" it was justified. The NSA also uses a filter to separate international calls from domestic calls. The Administration's recklessness in handling the rights and lives of people was what critics found unsettling (Huq).