Protect America Act of 2007

The Protect America Act of 2007 (PAA) is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the United States. [http://www.odni.gov/testimonies/20070918_testimony.pdf Statement for the Record to the House Judiciary Committee by Director John Michael McConnell] September 18, 2007] The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act. [ [http://www.whitehouse.gov/news/releases/2008/07/20080710-2.html White House signing ceremony for FISA Amendments Act of 2008] .]

Background

In December 2005, the "New York Times" published an article ["Bush Lets US Spy on Callers Without Courts" (Dec. 16, 2005; [http://www.commondreams.org/headlines05/1216-01.htm] ] that described a surveillance program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency in cooperation with major telecommunications companies since 2002 (a subsequent Bloomberg article [ [http://www.bloomberg.com/apps/news?pid=20601087&sid=abIV0cO64zJE&refer= Bloomberg.com: Worldwide ] ] suggested that this may have already begun by June 2000). Many critics have asserted that the Administration's warrant-free surveillance program is a violation of the Fourth Amendment to the United States Constitution against warrantless search, and, a criminal violation of FISA.

The Bush administration maintained that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists. [U.S. Department of Justice White Paper on NSA Legal Authorities [http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf "Legal Authorities Supporting the Activities of the National Security Agency Described by the President"] January 19 2006.] , and that the President's inherent authority under Article II of the Constitution to conduct foreign surveillance trumped the FISA statute. However, the Supreme Court decision in "Hamdan v. Rumsfeld" placed the legitimacy of this argument into question. [http://www.crooksandliars.com/2006/07/09/supreme-courts-ruling-in-hamdan-means-warrantless-eavesdropping-is-clearly-illegal/ Supreme Court’s Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal] , Glenn Greenwald, July 9, 2006] [ [http://balkin.blogspot.com/2006/07/hamdan-and-nsa-domestic-surveillance.html Hamdan and the NSA Domestic Surveillance Program: What Next?] , Marty Lederman, July 7, 2006]

On July 28, 2007, President Bush announced that his Administration had submitted a bill to Congress to amend FISA. He suggested that the current law was "badly out of date" - despite amendments passed in October 2001 - and did not apply to disposable cell phones and Internet-based communications. The bill he submitted to Congress would address these new technologies, Bush said, as well as restore FISA's "original focus" on protecting the privacy of people within the United States, "so we don't have to obtain court orders to effectively collect foreign intelligence about foreign targets located in foreign locations." [http://www.whitehouse.gov/news/releases/2007/07/20070728.html] He asked that Congress pass the legislation before its August 2007 recess, stating that "Every day that Congress puts off these reforms increases the danger to our nation. Our intelligence community warns that under the current statute, we are missing a significant amount of foreign intelligence that we should be collecting to protect our country." On August 3, 2007, the Senate passed the Republican-sponsored bill ( [http://www.opencongress.org/bill/110-s1927/show S. 1927] ) in a vote of 60 to 28( [http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=1&vote=00309 110^th Congress 1^st Session Vote 309] ). The House followed by passing the bill, 227-183( [http://clerk.house.gov/evs/2007/roll836.xml House Roll Call 836] ) on August 4, 2007.

Changes made to prior law

The bill altered the original 1978 law in many ways, including: [http://www.govtrack.us/congress/billtext.xpd?bill=s110-1927 GovTrack U.S. – S. 1927 Text of Legislation] ]

Warrant and notification requirements

The bill amended FISA to substitute the requirement of a warrant to conduct surveillance with a system of NSA (National Security Agency) internal controls.

The bill required notification to the FISA Court of warrantless surveillance within 72 hours of any authorization. The bill also required that "a sealed copy of the certification" be sent which would "remain sealed unless the certification is needed to determine the legality of the acquisition."

Domestic wiretapping

The bill allowed the monitoring of all electronic communications of people in the United States without a court's order or oversight, so long as it is not targeted at one particular person "reasonably believed to be" inside the country. cite web
last = Nakashima
first = Ellen
coauthors = Warrick, Joby
title = House Approves Wiretap Measure
publisher = Washington Post
date = 2007-08-05
url = http://www.washingtonpost.com/wp-dyn/content/article/2007/08/04/AR2007080400285.html?nav=rss_politics
accessdate = 2007-08-10 ] cite web
title = ACLU Fact Sheet on the “Police America Act"
publisher = ACLU
date = 2007-08-08
url = http://www.aclu.org/safefree/nsaspying/31203res20070807.html
accessdate = 2008-04-13 ]

Foreign wiretapping

The bill clarified confusion in current law by allowing the National Security Agency to collect communications between people in foreign countries without a warrant, regardless of whether or not the communications travel through telecommunication equipment located in the United States.

Data monitoring

In the bill, the monitoring of data related to Americans communicating with foreigners who are the targets of a U.S. terrorism investigation was addressed. This data could be monitored only if intelligence officials have a reasonable expectation of learning information relevant to that probe.

Authorization power

Under the bill, the director of national intelligence and the attorney general could authorize the surveillance of all communications involving foreign targets. The Foreign Intelligence Surveillance Court, composed of federal judges whose deliberations are secret, could only examine whether the government's guidelines for targeting overseas suspects are appropriate.

The guidelines for authorizing surveillance were:

*There was reason to believe that the target of the acquisition was outside the U.S. and that the procedures used would be subject to the review of the FISA Court.
*That the acquisition involved obtaining the foreign intelligence with the assistance of a telecommunications service provider or other persons who would have access to communications, either as they were transmitted or while they were stored, or access to equipment being used to transmit or store the communications.
*That the significant purpose of the procedure would be to acquire foreign intelligence information.

The certification of the determination (sent to the Court) would be written, signed under oath and supported by affidavit of security officials appointed by the president and confirmed by the Senate, or the head of any intelligence community agency.

If the determination required immediate action and time would not permit preparing a certification, the certification supporting the determination would be submitted in writing to the Court no more than 72 hours after it was made. The AG would transmit as soon as possible to the Court a sealed copy of the certification that would remain sealed unless the certification was needed to determine the legality of the acquisition.

Reporting requirements

The Attorney General would report to Congress semi-annually with:

*A description of any incidents of non-compliance with a directive issued.
*Incidents of non-compliance with the guidelines or procedures established for determining that the acquisition concerns persons outside the United States by any entity of the Intelligence Community.
*Incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive.
*The number of certifications and directives issued in the preceding six months.

Legislative history

Senator Mitch McConnell introduced the act on August 1, 2007, during the 110th United States Congress. On August 3, it was passed in the Senate with an amendment, 60-28 (record vote number 309). [http://www.govtrack.us/congress/bill.xpd?bill=s110-1927 GovTrack U.S. – S. 1927] ] On August 4, it passed the House of Representatives 227-183 (roll number 836). On August 5, it was signed by President Bush, becoming Public Law No. 110-055. On February 17, 2008, it expired due to sunset provision.

Controversy

The Protect America Act generated a great deal of controversy. Civil libertarians and privacy advocates have argued that the bill effectively authorized massive, untargeted surveillance of communications both domestic and foreign. The ACLU - which refers to the bill pejoratively as the "Police America Act" - wrote that the act authorizes a massive surveillance dragnet, and that the reduced oversight provisions are "meaningless" and provide only for "a phony court review of secret procedures."

ee also

*USA PATRIOT Act
*Communications Assistance for Law Enforcement Act (CALEA)
*War on Terror
*Legal challenges to NSA warrantless searches in the United States
*Total information awareness
*FISA Amendments Act of 2008

References

External links

* [http://www.dotgovwatch.com/?/archives/17-Department-of-Justice-Website-Illegally-Lobbies-Congress-LifeAndLiberty.gov.html Department of Justice's Support for the Protect America Act]
* [http://www.govtrack.us/congress/bill.xpd?bill=s110-1927 GovTrack U.S. – S. 1927]
* [http://www.sourcewatch.org/index.php?title=U.S._congressional_action_on_domestic_wiretapping Congresspedia – S. 1927]
* [http://eteraz.org/2007/08/11/short-primer-on-new-fisa/ Plural Politics Protect American Act Plainspeak Legal Primer]
* [http://discoursedb.org/wiki/Protect_America_Act_of_2007 Protect America Act of 2007] at Discourse DB