If you're interested in the NSA phone-tapping controversy, The Volokh Conspiracy does a thorough - but still readable - examination of some case law surrounding the issue. I'd recommend this post as the BARE minimum for you to know before attempting to discuss the matter at your next cocktail party or Democratic Underground comment flame.

Having read it, I'm still a bit undecided on the technical legality of it, but more sure that I don't have a problem with it. Here's what I mean:

1) Article 2 of the Constitution gives the President the authority to warrantlessly monitor completely-foreign communications.

2) The Foreign Intelligence Surveillance Act forbids the warrantless monitoring of domestic communications.

The NSA program warrantlessly monitors communications that involve one end in the US, and one end in a foreign country, and there's no solid legal precedent for saying whether the situation falls under area 1 or area 2.

That's how things ARE.

As for how they SHOULD be, it comes down to the following question:

Do you fall on the side protecting the privacy of US citizens, even if it means extending the protections to their foreign contacts; or do you fall on the side of monitoring foreigners, even if it means monitoring US citizens?

Because we're at war, I'm willing to stand for the second option, mostly because these are marginal cases, and I don't see this escalating toward an approval of purely domestic warrantless wiretaps.

Feel free to disagree in the comments, if you're so inclined.

Meanwhile, (via the Puppy Blender), The American Thinker recalls (and quotes) the New York Times nodding approvingly about Bill Clinton's warrantless eavesdropping via ECHELON.

UPDATE 1-17-06 _Jon of We Swear points out a post at Power Line wherein some more on-point case law suggests that Article II trumps FISA when it comes to warrantless international searches.

Posted by: Harvey at 09:12 AM | Comments (6) | Add Comment
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