ACSBlog: The Blog of the American Constitution Society

The “Protect America Act of 2007” was signed into law by President Bush on Sunday. Time Magazine characterized the law as

[Allowing] for the first time in nearly four decades, a senior intelligence official – not a secretive federal court – [to] have a decisive voice in whether Americans’ communications can be monitored when they talk to foreigners overseas.

Regarding the additional power vesting in the executive branch, congressional staffers who spoke to the New York Times characterized the Act's impact as

[Going] far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists.

John Dean, former counsel to President Nixon, described the law:

[A]nother bold and blatant move by Bush to enhance the powers of the Executive branch at the expense of its constitutional co-equals.

The new law allows the government to eavesdrop on phone calls and e-mail messages, “so long as the target of the government’s surveillance is ‘reasonably believed’ to be overseas.” The legislation is set to sunset after 180 days.

John Dean described the law as part of

[President Bush's desire for] legislative immunity for the American companies, and government officials (including himself), to protect them from criminal prosecution for violating the criminal provision of FISA. As readers will recall, before Congress caved and gave Bush power to conduct this surveillance, he - and telecommunication companies simply opted to do so illegally.

SCOTUSBlog reported that the ACLU “asked the [FISA] court on Wednesday to release publicly a series of orders or opinions on the scope of the government’s power to conduct electronic eavesdropping,” including an order prohibiting certain types of eavesdropping on U.S. citizens “that led the Bush Administration to press for . . . new emergency legislation to fill the supposed ‘gaps’ opened in eavesdropping authority.”

The Washington Post reports the Center for Constitutional Rights has already brought suit to invalidate the law:

It gives the national intelligence director and the U.S. attorney general too much power to intercept communications of suspected terrorists overseas  - even when they are talking to someone in the United States.