Protect America Act of 2007

Background
 Since the passage of the initial Foreign Intelligence Surveillance Act (FISA), advances in technology had made a number of the provisions of the bill outdated. The 1978 FISA allowed for the surveillance of foreign-to-foreign calls that were relayed through wireless communication. However, since that time, nearly 90 percent of all international communication is sent through wireless, primarily fiber optic cable, which was not included under the original FISA provision. The National Security Agency (NSA), however, concluding it was doing so legally, decided to tap foreign communications that went through U.S.-based wired relay stations. When in January 2007, the Bush Administration agreed to oversight of its wiretapping program by the Foreign Intelligence Surveillance Court. Initially the Court allowed the wiretapping to continue. In March, a the court challenged the legality of such wiretapping, and in May, another ruling stated that the government must acquire a warrant for surveillance whenever a fixed wire is involved. As a result, the NSA was forced to ask the Foreign Intelligence Surveillance Court for a court order allowing it to tap foreign communication so frequently that a backlog of warrant-requests developed. U.S. intelligence officials cited a drop in foreign surveillance to just 25 percent of what it was capable of doing only months before, prior to the court rulings. These delays and reductions caused by the FISA court, a so-called "intelligence gap," prompted the Bush Administration to lobby Congress for a revision of FISA.

Current Status
On August 3 & 4, 2007, both the Senate and House, respectively, passed the Protect America Act of 2007. President Bush signed the bill into law on August 5. The legislation was only authorized, however, for 180 days. The Senate and House have separately considered the RESTORE Act, which would make permanent many FISA reforms. On January 29, the House and Senate approved a 15-day extension to the Protect America Act. On January 31, President Bush signed the 15-day extension into law. A second extension was voted down by the House on February 14, allowing the Protect America Act to expire.

Bill summary
On August 3, 2007, the Senate passed the Protect America Act of 2007 (S. 1927). The House followed by passing the bill the next day. The legislation altered the original 1978 law in many ways, including the following :

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 electronic communications between people on U.S. soil, including U.S. citizens, and people "reasonably believed to be outside the United States," without a court's order or oversight. >

Foreign wiretapping
The bill clarified confusion in current law by allowing the National Security Agency to collect purely foreign communications in the future without a warrant.

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 (DNI) 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 court (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 6 months.

DNI lobbies Congress
On April 27, 2007, the White House introduced a FISA reform bill to Congress, a 66-page document written by the Office of the Director of National Intelligence (DNI), Mike McConnell. On May 1, McConnell began lobbying Congress when he appeared before the Senate Select Committee on Intelligence in an attempt to push for amending FISA. Congressional Democrats were willing to move forward with the reforms, but refused to consider legislation until the Administration released documents regarding its warrantless wiretapping program, for which Congress had issued subpoenas that the White House ignored (See Subpoenas issued below). Even despite this, some Democratic leaders were still prepared to consider amending the legislation in September after the August congressional recess.

On July 24, McConnell met with a bipartisan group of Senators in a closed session, asking for immediate approval of a slimmed-down, 11-page version of the White House bill. Removed were several provisions, including one that would have given immunity from lawsuits to companies that aided in surveillance. McConnell was also able to use as leverage the recently released National Intelligence Estimate (NIE), which warned of the growing threat of al Qaeda. Citing the backlogs of needed eavesdropping warrents, the DNI argued that Congress could not wait until after the August recess to act.

Following that meeting, Democrats in Congress largely agreed to adopt reforms before the break, however, they still wanted to work out several details. McConnell called for allowing warrantless wiretaps for any foreign intelligence targets (see Foreign wiretapping below), but Democrats wanted the bill's language to only allow for terrorist suspects. Speaker of the House Nancy Pelosi (D-Calif.) proposed a compromise to limit the scope to "threats to national security," but this idea was rejected by McConnell.

Perhaps the biggest point of contention came over domestic surveillance, that is between foreigners and anyone in the United States (See Domestic wiretapping below). McConnell sought to include such provisions without significant oversight, while Democrats sought to prevent the abusive monitoring of American citizens. On July 31, in a rather unusual night session, McConnell attempted to assure Democratic leaders that the Attorney General would have oversight of domestic wiretapping to ensure they were in keeping with the law. Particularly in light of a distrust of Attorney General Alberto Gonzales, Democrats stated that they would were not satisfied by the inclusion of such a measure (See Authorization power below).

On July 28, 2007, President Bush made a public statement calling on Congress to pass his legislation to reform FISA, which he called badly out of date," in order to ease restrictions on secret surveillance of terrorist suspects. 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.”

Senate Approval
By August 2, the White House and Congressional Democrats seemed close to a deal. McConnell agreed to some level of oversight by the FISA court, a major concession by the White House. However, negotiations soon fell apart, and the Senate passed the Republican-sponsored bill, almost identical to the White House's initial reform legislation, on August 3 in a 60-28 vote. No strengthened FISA court oversight was included. 

House Approval
The House followed suit, passing the bill the next day by a 227-183 maring. 

In a New York Times interview regarding how the White House was able to get the Democratically-controlled Congress to pass the FISA reform bill, Sen. Russ Feingold (D-Wis.) stated that the Administration "has identified the one major remaining weakness in the Democratic Party, and that’s its unwillingness to stand up to the administration when it’s making a power grab regarding terrorism and national security. They have figured out that all they have to do is start talking about an imminent terrorist threat, back it up against a Congressional recess, and they know the Democrats will cave."

Extensions
In early 2008, the Senate was embroiled in a debate over the RESTORE Act. With the PAA expiring in February, the House and Senate approved a 15-day extension of the law on January 29. However, on February 14, the House voted against another extension. A coalition of liberal democrats &endash; opposed to the Protect America Act &endash; and Republicans defeated the measure, allowing the PAA to expire on February 15.



Related SourceWatch articles

 * U.S. congressional action on domestic wiretapping
 * Foreign Intelligence Surveillance Court
 * Foreign Intelligence Surveillance Court of Review
 * Department of Justice
 * Office of the Director of National Intelligence
 * George W. Bush's domestic spying

External articles

 * Spencer Ackerman, "Today's Must Read," TPM Muckraker, August 3, 2007. This link provides information about the negotiations of domestic wiretapping authority.
 * Spencer Ackerman, "What's in the FISA Bill?," TPM Muckraker, August 3, 2007. This link provides information on domestic wiretapping and the FISA court's authority.
 * Spencer Ackerman, "Probable Cause Out the Window in FISA Fix?," TPM Muckraker, August 3, 2007. This link provides information about the negotiations of warrant requirements.
 * Spencer Ackerman, "FISA: What Isn't Electronic Surveillance?," TPM Muckraker, August 6, 2007. This link provides information on what constitutes electronic surveillance.
 * James Risen, "Bush Signs Law to Widen Reach for Wiretapping," New York Times, August 6, 2007. This link includes information on foreign and domestic wiretapping.
 * Spencer Ackerman, "FISA: Communication Breakdown," TPM Muckraker, August 7, 2007. This link includes information on foreign surveillance and data monitoring.
 * Steven M.Bellovin, Matt Blaze, Whitfield Diffie, Susan Landau, Peter G. Neumann and Jennifer Rexford, "Risking Communications Security: Potential Hazards of the Protect America Act", IEEE Security and Privacy, retrieved January 31, 2008