Presidential Power:
The Controversial Protect America Act

By Alan Shapiro

To the Teacher:

In December 2005, the New York Times touched off a lasting controversy when it unveiled the secret surveillance program that the Bush administration had launched soon after 9/11. The following student readings cover a recent development in this controversy, the fight over the Protect America Act. Discussion questions and student activities follow the readings. (Another lesson on this website, "Presidential Power: Eavesdropping, Terrorism & American Freedoms," also addresses this controversy.)

Student Reading 1:
Protecting America from attack & protecting American freedoms

For Americans, no issue is more important than protecting against another terrorist attack, and no other words symbolize more about their country that is worth protecting than "America, the land of the free." But is the U.S. government protecting American freedoms even as it attempts to protect America from attack? This question is at the heart of a controversy that began in December 2005.

At that time, Americans learned that President Bush had authorized the National Security Agency (NSA), with the essential help of major telecommunications companies, to run a secret communications surveillance program covering telephone calls, faxes, e-mails and other electronic messages.

Most Americans agree that monitoring the communications of foreign terrorist suspects is essential to the safety of the country. But was this program also targeting Americans and violating their First and Fourth Amendment rights to "freedom of speech" and "to be secure…against unreasonable searches and seizures"?

During the Vietnam War and Watergate years, a similar question arose when the country learned that President Richard Nixon had authorized eavesdropping on Americans who were opposed to the war, involved in the civil rights movement or even regarded by Nixon as personal enemies. These discoveries led to the Foreign Intelligence Surveillance Act (FISA) of 1978. It required that if the target of surveillance is in the United States, the government must have a warrant from a special FISA court.

Recently, the Bush administration's surveillance program came under renewed scrutiny. It involved the following issues:

1. The FISA court informed the Bush administration early this year that it acted illegally in not seeking warrants in two situations: a) telephone calls in which one party was outside the U.S. and b) certain foreign communications moving through American telecommunications routing stations. The administration kept this information secret for months and continued the program.

2. Also at issue were the lawsuits facing AT&T, Verizon and other telecommunications companies providing private communications data to the government.

The Democratic majority in the House and Senate was willing to make some amendments to FISA to give the administration more flexibility in its monitoring of suspected terrorists. But it argued that the FISA court should continue to oversee government surveillance. The president, on the other hand, wanted to give the attorney general and the director of national intelligence the power to approve any surveillance; the FISA court would oversee such surveillance only well after it had occurred.

Congressional Democrats also wanted more information from the Bush administration about why its illegal behavior continued secretly, how much spying without warrants it has authorized, and whether the program has included eavesdropping on Americans. Senator Jay Rockefeller, the Democratic chairman of the Senate Intelligence Committee, requested documents on the creation of the spy program and the Justice Department's legal justifications for it. The president would not provide them.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why is the NSA's communications surveillance program controversial? Why do you suppose the program was kept secret? Does the program violate the First and Fourth Amendment? Why or why not?

3. What is FISA? Why did this act become law?

4. According to the FISA court, how was the Bush administration acting illegally in conducting the program? How did the president defend the actions of his administration?

5. What information did Democrats want from the Bush administration and why? What do you suppose were the president's objections to these requests?

Student Reading 2:
The Debate Continues

Negotiations between Bush administration representatives and Democratic leaders broke down. But the president still got what he wanted. Both the Senate and the House, with some Democratic support, approved a Republican bill, the Protect America Act. The act expires after six months and must then be extended by lawmakers or reconsidered. (New York Times, 8/11/07)

The Protect America Act allows the government to monitor, without a warrant: 1) the phone call or e-mail of an American in the U.S. as long as one of the people involved is "reasonably believed" to be outside the country and 2) an all-foreign communication routed through the U.S. But Americans could be the communicators in any of these situations. FISA oversight of the program is very limited, and largely in the hands of the attorney general and the director of national intelligence.

The law gives telecommunications companies immunity from lawsuits, which the companies had been pressing for. However, the new law does not protect these companies retroactively. Ambiguous language in the Protect America Act may also give the Bush administration the authority to collect business records without a warrant.

Is the government protecting America from attack and protecting American freedoms?

Bush administration supporters say yes. A White House spokesman emphasized that the aim was not to eavesdrop on Americans but to give the government the flexibility it says it needs to focus on foreign suspects. "It's foreign, that's the point. What you want to make sure is that you are getting the foreign target."

A White House statement declared: "The Protect America Act modernizes the Foreign Intelligence Surveillance Act to give professionals the tools they urgently need to gather information about our enemies, while protecting the civil liberties of Americans."

Philip Bobbitt, a law professor and the director of the Center for National Security at Columbia University, wrote: "Technology is changing the nature of the [terrorist] threat, not merely the mechanics of collection. The statutory change is unnecessary, I suppose, if you believe that there is in fact no real threat, that it's all hype by the White House to expand its power-presumably to some other end-and that all we have to fear is fear itself….Why not assume that [the Bush administration is] proposing a solution to a real problem?" (New York Times, op-ed page, 8/22/07)

But critics say that in attempting to protect American from attack through laws like the Protect America Act, the president and Congress are failing to protect American freedoms. A Washington Post editorial declared: "The Democrat-led Congress, more concerned with protecting its political backside than with safeguarding the privacy of American citizens, left town early yesterday after caving in to administration demands that allows warrantless surveillance of phone calls and e-mails of American citizens with scant judicial supervision and no reporting to Congress about how many calls are being intercepted." (www.washingtonpost.com, 8/6/07)

Senator Russ Feingold, a Wisconsin Democrat, said: The act "means giving free reign to the government to wiretap anyone, including U.S. citizens who live overseas, service members…, journalists…, or even members of Congress who are overseas and call home to the U.S. and this is without any court oversight whatever. This is unacceptable."

Caroline Frederickson, head of the Washington D.C. office of the American Civil Liberties Union, said: "The Democrats caved in to the politics of fear we're seeing from this administration. They didn't want to be depicted as soft on terrorism." Court oversight, critics argue, protects American freedoms without endangering the country, and without it those freedoms are likely to suffer.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why did the president think his eavesdropping program was being unduly restricted?

3. Explain why the president thinks each of the three major provisions of the Protect America Act is essential? What reason(s) do you suppose 16 Democratic senators and 41 representatives would give for supporting the act?

4. Consider the name of the law. What reactions to it would supporters likely have? Opponents? Why?

5. What potential dangers to ordinary American citizens do critics see in this act?
Re-read carefully the First and the Fourth Amendment. Does the Protect America Act violate either? Why or why not?

6. Early next year the act will expire. Should it be renewed as is? Why? Should it be changed? Why? How?

7. How do you respond to Professor Bobbitt's concluding question?

8. Critics of President Bush have accused him repeatedly of engaging in "the politics of fear." What do they mean? Do you agree with these critics? Why or why not?

9. President Bush has refused the requests of Democratic leaders for certain information about the surveillance program. What do you suppose his justification would be? Why or why not?

For inquiry

The class might want to inquire into key elements of the Watergate scandal, comparing and contrasting two embattled presidents, both leading unpopular wars and initiating controversial secret surveillance programs.

For writing and citizenship

Write a letter or e-mail to President Bush, your senators and/or your House representative expressing your views about his or her support for or opposition to the Protect America Act.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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