Term Paper on "Protect America Act of 2007"

Term Paper 15 pages (4307 words) Sources: 6

[EXCERPT] . . . .

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… READ MORE

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