Texas Review of Law and Politics
The most important weapon in the War on Terror is intelligence. The Protect America Act of 2007, a modification of the Foreign Intelligence Surveillance Act (FISA), was favored by Congress for providing a positive framework for ensuring the proper rule of law kept pace with changes in technology. FISA closed the intelligence gaps that had arisen because of the application of the Act to foreign persons in foreign countries.
FISA codifies in federal law the procedures associated with how electronic surveillance and searches of acquisition of foreign intelligence is conducted. In order to conduct electronic surveillance, a court order must be issued by a FISA judge. The judge must determine: (1) whether there is probable cause to believe that the target of the surveillance or search is a foreign power, or its agent; and (2) that the primary purpose is to collect foreign intelligence.
The purpose of the Protect America Act was to provide an update to FISA in order to give the intelligence community the necessary tools to gather information about potential foreign enemies. One of the most relevant provisions is the requirement of the FISA court’s involvement in determining that reasonable procedures are used in ascertaining whether a target is outside the United States. These attempts to improve the U.S.’s national security policy have not been deprived of criticisms. The Act has been criticized for allowing massive, untargeted collection of international communications without court order or meaningful oversight. Despite this, the Protect America Act provides a framework for electronic intelligence gathering that keeps pace with heightened threats to national security due to advances in telecommunications technology.
Jeffrey F. Addicott, The Protect America Act of 2007: A Framework for Improving Intelligence Collection in the War on Terror, 13 Tex. Rev. L. & Pol. 43 (2008).