Protect America Act of 2007

Protect America Act of 2007 is the modernized version of the Foreign Intelligence Surveillance Act or FISA (Department of Justice 2007, GovTrack.us 2007). Sponsored by Senator Mitch McConnell on August 1 this year, it was enacted by Congress and signed into law by President George W. Bush. The Act consists of permanent amendments to the FISA in order to keep the United States safe. It is designed to provide the intelligence community with necessary inputs about terrorists, America's enemies. The Act restored FISA's original goal of protecting the rights of persons in the country without obstructing intelligence work on targets in other countries. It emphasized that it would enable the intelligence community to close the critical intelligence gap. The legislation was made permanent, as the tools it provides will expire next February (Department of Justice, GovTrack.us).

How the Act Modernizes the FISA

The Act modernizes the FISA in four ways (Department of Justice 2007, GovTrack.us 2007). It permits intelligence professionals to gather foreign intelligence inputs in foreign lands without need for prior court approval. It empowers the FISA Court to review intelligence procedures to make sure the input collection is directed at specific targets abroad. It provides a mechanism for this Court to require third parties to help the intelligence community in gathering inputs. And it shields third parties from private lawsuits that may arise for assisting in authorized U.S. intelligence work in their countries (Department of Justice, GovTrack).

Under the Protect America Act, intelligence professionals may gather information without needing prior court approval as they are not covered by the electronic surveillance provision of FISA (Department of Justice 2007, GovTrack.us 2007). The provision applies to persons within the U.S. mainland and their rights. The Act exempts surveillance work directed at persons reasonably believed to be outside the country. Surveillance done within the U.S. still requires a court order (Department of Justice, GovTrack.us).

Under this Act, the FISA Court can review the procedures used by the intelligence community to assure that the work or data collection is directed at specific person or persons outside the U.S. mainland (Department of Justice 2007, GovTrack.us 2007). The Attorney General submits to the FISA Court the procedures used by the Federal government to show that the work is beyond the purview of electronic surveillance. Hence, it need not comply with the requirement for prior court approval (Department of Justice, GovTrack.us).

Its mechanism allows the Director of National Intelligence and the Attorney General to require communication service providers to perform authorized foreign intelligence activities (Department of Justice 2007, GovTrack.us 2007). These activities include providing information, using facilities and extending necessary assistance. Should a person or entity fail or refuse to comply, the Attorney General may ask the FISA Court to compel the person to comply (Department of Justice, GovTrack.us).

The Act also shields third parties from private lawsuits for helping the Government in any way in its intelligence activities outside the mainland. However, it does not extend protection to those who claim to have helped the country after the New York attacks. That help should come from the U.S. Congress (Department of Justice, GovTrack.us).

Rationale Behind the Modernization of FISA

In the past, Congress realized that the Government should be able to conduct foreign intelligence information about anyone in the U.S. who might harm the country (Department of Justice 2007, GovTrack.us 2007). It must be able to do so while protecting the rights of citizens in the country. The consequence was its enactment of the Foreign Intelligence Surveillance Act or FISA in 1978. It was to regulate Government efforts at conducting surveillance activities at persons in the mainland. This, however, did not extend to persons overseas. The advancement of telecommunications technology since 1978 also blurred the distinction between surveillance over persons in the U.S. And those outside its borders. Congress needed to set a careful and complex definition of "electronic surveillance (Department of Justice, GovTrack.us)."

At that time, the Government also needed to secure a court order before undertaking surveillance work against a suspected terrorist or another target in a foreign country (Department of Justice 2007, GovTrack.us). In the meantime, these target communicated with others overseas yet the Government needed a court order in order to conduct surveillance of the target. The situation remained even with the enactment of FISA almost 30 years ago by Congress. There was clearly a critical intelligence gap in-between and this compromised national security. This meant that, without a court order, the Government missed "a significant amount of foreign intelligence," which should have been collected for the safety and protection of the country (Department of Justice, GovTrack.us).

Changing the Concept of Electronic Surveillance change in the concept to mean and clarify that "electronic surveillance" did not cover that conducted at targets overseas needed to be made to close that gap (Department of Justice 2007, GovTrack.us 2007). The intelligence community should not be hampered by the constraint and delay in securing a court order in order to perform its function concerning targets outside the U.S. The Protect America Act of 2007 remains consistent with the intents of the FISA to secure the rights of citizens in the U.S. And the requirement for a court order prior to the conduct of surveillance (Department of Justice, GovTrack.us).

Extending the Wiretap Law

The Protect America Act of 2007 expands the Government's power to wiretap phone calls and emails within the country without the supervision and prior approval of the Court (Savage 2007). This was a sharp victory for the White House over proponents of civil liberties and privacy rights. They contended that the legislation was drafted largely by the White House and did not hold committee hearings for it. The Act established a broad exemption from the 1978 FISA, which required a court order to monitor electronic communications in the U.S. (Savage).

This new law will allow the National Security Agency to spy on foreigners overseas who communicate with Americans (Savege 2007). It restores the warrant-less wiretapping program begun by President Bush after the 9/11 terrorist attacks. This program was terminated when brought under the supervision of the court last January. This legislation lifts that prohibition. It clarifies that the NSA need not secure a judge's permission prior to monitoring phone calls and emails if the caller and the recipient of the call are both abroad. Telecommunication networks were not yet in existence when the original FISA was enacted. After signing the bill, President Bush thanked and praised Congress for the extra power his administration needed to frustrate the intentions of the nation's enemies and to prevent similar attacks in the future. He noted that these enemies posed a dynamic threat for understanding the use of modern technology against American society. The response to this threat is the use of equivalent dynamic and flexible tools to deflect the threat. The Power America Act of 2007 arms intelligence people with greater flexibility in performing their duty. At the same time, it seals the dangerous gap in the gathering of essential inputs, which could weaken the nation's defenses (Savage).

Privacy groups, however, expressed alarm over the exemption the new law grants NSA from requirements to interfere with calls and emails among Americans (Savage 2007). They bewailed the Democrats' show of weakness towards the Republicans' throwing the blame on them should there be another terrorist attack and the President did not have the extra power before the next Congressional recess. Executive Director of the American Civil Liberties Union or ACLU lamented over Congress' yielding to the pressures of the President (Savage).

This law grants the President broader powers than those he claimed he had the right to exercise under the earlier program in 2001 (Savage 2007). One way is by compelling telecommunication companies to allow the use of their facilities for government wiretaps. These companies will be immune to possible lawsuits if they comply. The old program made such access to facilities only voluntary. As a result, some of those wiretaps became the subject of lawsuits for violation of customer privacy. Another way is by not setting any limit to the communications. The old surveillance program was restricted to calls and emails involving a suspected terrorist. The Protect America Act of 2007 allows the President or the executive branch unmonitored and un-censored surveillance of international calls and emails. These include those with Americans on the line, as long as the surveillance is directed "at a person reasonably believed to be located outside the United States." It does not require either caller to be a suspected criminal, spy or terrorist (Savage).

Across-the-Board Exemption

Existing law requires that private information gathered by the government be deleted (Savage 2007). But this new law makes an exemption and allows government agents to retain information about an American with foreign intelligence value or evidence of a crime. It offers as a check against abuse for the Attorney General and director of national intelligence to set up procedures. These procedures should be submitted for review by a secret security court. This court normally evaluates and approves warrant applications for intelligence wiretapping on the U.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)

Reasonably Believed"

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).

Lowering of Standards

The Act reflected not only a loosening of standards but also weak oversight procedures (Huq 2007), Instead of traditionally issuing individualized warrants, the director of National Intelligence and the Attorney General could now certify programs for collecting international calls for an entire year. The FISA court decided the fate of the program entirely. And it could invalidate only "clearly erroneous procedures and claims." The government needed only meet low and minimum standards in order to undertake the task of surveillance. It also deprived the court access to the program's details and actual operation. Furthermore, it obliged the Attorney General only to report "incidents of non-compliance" rather than an all-important and full disclosure of the program's overall operations. The NSA would certainly not be expected to do any thorough self-reporting (Huq).

Lastly, the law should be effective for only six months (Huq 2007). But it would be authorized in the middle of the presidential period. That would be a time and condition of higher or extreme pressures to yield to Administration demands. What critics saw instead of a six-month limit was the designing of new surveillance powers for another year afterwards (Huq).

Summarily, the Protect America Act would not improve existing security-related surveillance powers (Huq 2007). Instead and in reality, critics insisted, was that it would only allow the government to spy wherever and whenever it could be justified. It pretended to be subject to self-oversight. It is common knowledge that this Administration wants power without the accompanying accountability (Huq)..

How the Act Would Work to Close the Dangerous Surveillance Gap

The Protect America Act of 2007 merited the support both of the House and the Senate in restoring FISA to its original focus (Bush 2007). This was to protect the rights of Americans while not obstructing the conduct of foreign intelligence surveillance on foreign targets who could be overseas. The scope of FISA had expanded unexpectedly. This required the government to obtain a court order in collecting foreign intelligence information against a target in foreign countries. This situation presented as an unnecessary obstacle to the intelligence community's capability to acquire accurate and current information needed for its work. This information could contain and divulge or lead to the intent of the enemies of America who could be overseas. It could also divert scarce resources, which could be better used in guarding citizens' civil liberties rather than those of foreign terrorists (Bush).