What I still don't understand is why the Administration needed to circumvent the law. How hard is it to get a (legal but secret) warrant for a domestic anti-terror wiretap? Am I missing something here?

Mike, I don't think you're missing anything. Not anything that will be voluntarily shared by the Bush administration, at least. And therein lies a big chunk of the problem, AFAIC, which is that a government* can always retreat into “We'd like to tell you why we need to do this, but to tell you would compromise why we need to do this.”

Personally, the ease of getting these warrants demonstrates how reprehensible circumventing the court is. EPIC’s list shows that in only 4 cases since FISA went into effect did the secret court** not grant the warrants. Now those 4, according to the EPIC list, were all requests by the Bush administration. Is it possible that the FISA court's reasoning is institutionally bound to a different set of intelligence needs than we have now? (Implying that the intelligence needs we have now are different from previous ones.) Sure, but the way to fix it is through the proper political process, which is not unilateral action.

*My perception is that the Bush administration does this more than recent administrations, but my political memory is short.

**It galls me that there's a secret court to begin with, to be sure.

I think this story has legs. Bush will go down for this -- that's what my Magic Eight Ball says.

Doug: I think you may be underestimating the Bush team and the American public. Whatever disagreements I have with this administration, I do think they are in general very capable people at doing what they want to do. The defense (really a dodge, but it works similarly) that I mentioned before, that any government can always retreat into meta-security statements is a good one, and hard to refute. Imagine contesting a grade on a paper in high school, but the teacher says "I can't explain why I gave you that grade because doing so would undermine my ability to teach effectively." It's a statement whose veracity you cannot disprove because you don't know what's behind it.

The only possibility I see for this gaining traction is if the opposition in Congress (as distinct from the Democrats) has finally gotten some backbone and indeed does not let this die after the winter recess. Otherwise, it's another fight that gets handed to the historians.

It seems to me FUD cuts both ways. For instance, is your fear of this Administration's motives (or the supposed precedent this sets)proportionate to the risk?

Personally, I'm more concerned about what Sony may have put on my hard drive than about what Big Brother may hear when I call Liz from Amsterdam. But maybe that's just me.

Well, Mark, I'm very concerned about what Sony puts on my hard drive (or would if I bought their schlock and ripped it), and in particular I'm concerned about corporations' unfettered access to and influence over our government and its processes. I'm concerned about all the corporate security cameras floating about and the use of mercenaries as quiet substitutes for doing our military's dirty work. I'm concerned that the ban on torture is going to come to naught because that work will go to the mercenaries, who won't be covered by it (my speculation).

However, redefining the Constiturion is something that concerns me even more. Our elected officials' trying to convince me that circumventing the checks and balances in our governmental process is for my own good concerns me more. The slippery slope I'm envisioning here is not from domestic spying to "My god, that colonoscopy I just got was also a way for the feds to put a tracer in my GI!" The slippery slope I'm implying is from spying permitted only with a court order to spying permitted on the whim of a president. If it can be done on a whim, it can be done for any whim. (Like keeping track of everyone in the country with tattoos, and then restricting their access to blood transfusions on the rationale that if they had wanted open access to transfusions, they shouldn't have gotten stuck with a public needle in the first place.)* My freedom is worth more than a whim.

*Yes, this is inaccurate w/r/t how tattoos are done these days, and no, I do not have anything against people with tattoos. I'll tell you about my reasons for being on the Red Cross's do not donate list if you like.

TK, you answer FUD with FUD. (FWIW, I don't think the threat of terrorism is a "whim", but then again, I'm the one riding the airplanes to Europe 2 or 3 times every month....)

What the latest tempest-in-a-teapot sounds like is the same data mining operation (Echelon? Eschaton?) that happened under Clinton, only with Sprint involved. I happen to think this is a good thing. Bring on voice recognition software that doesn't give a damn when I'm asking my wife what she's wearing.

If you think Bush is more of a danger to your personal well-being than all the fanatics who want to see western civilisation rolled back a thousand years, that's your perogative. Personally, I trust regular election cycles a little more than that. And again, simply FWIW, you're going to have to back down a bit from eleven before I take you seriously.

Well, first of all, the story now makes much more sense. If the NSA is now using a blanket attack on domestic signals, they'd need the expanded powers that Bush has given them, rather than the case-by-case warrant system of FISA.

Secondly, I must take you to task, Mark. What does the Sony rootkit have to do with this topic? That's apples and oranges. I may as well say that you shouldn't worry about terrorism on your transatlantic flights because you're statistically more likely to be struck by a cab on your way to the airport. It's true but immaterial to the argument.

ECHELON is not a "Clinton" program. It was first reported on in 1988 and has its roots reaching back through the Cold War to the 1947 UKUSA Agreement -- see here for more history. The program has existed through presidencies of both parties.

I'm glad that you're OK with having the government listen in on your conversations. Bully for you. Unfortunately, this is not an opt-in system. I reserve the right to live in a goverment of laws, not of men. Should ECHELON be extended to domestic sigint? Fine, pass the law in Congress. Let's have the debate about it. For any President of any party to assume extralegal wartime powers, be it in the War on Drugs or the War on Terror, is a matter of grave concern for all of us patriotic Americans who believe that the Constitution is more than a piece of paper. It is the founding covenant of our body politic. Don't fuck with it.

You present the debate as a choice between "all the fanatics who want to see western civilisation rolled back a thousand years" and George W. Bush. That is a false choice. The choice is whether or not we will stand for unlimited executive power, in the hands of any president. Personally, I don't have much faith that this administration would not use unlimited powers for nefarious purposes, but I don't have any proof either. However, any reading of history will show that such powers eventually will be misused by someone. Give the presidency the powers of a dictatorship, and eventually we will live in a dictatorship.

And if you think this is "eleven," you really ain't seen nuthin' yet.

Mark, you say you don't mind having the govt listen your personal calls about your wife's state of dress. But what if the discussion became one of your frustrations with a TSA official who made you take your scissors out of your briefcase and throw them into the trash. Your wife replies with "It's like you had a bomb or something". Red flags go up, they analyze your flying patterns, they notice you were in London (or Paris, or Madrid, or Prague) on the same day as someone else they are watching and the next thing you know you are some kind of list, and you don't even know it. At the least a lot of government resources are wasted, at most you end up jail (Possibly in Eastern Europe. Don't say it can't happen to you. Somebody is in those jails and some of them are innocent. Has to be.)

You mention elections have a way of dictator-proofing the country. Wrong. Elections in this country have been rigged and manipulated since the founding of the republic. And the more power one party or one person has the easier it is. Even the fact that there are only 2 significant parties in this country is an example of this. There is no law stating "No third parties", but there are plenty of laws that make it extremely difficult for a newcomer to break into the duo-opoly. It is not a big jump to think that an entrenched single majority party could write laws that favored them enough that they could become a monopoly. FDR tried it with his "court packing" scheme.

Who here thinks that had this story come out before the 2004 elections it would't have changed SOME votes?

Bruce Schneier said it best: Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter.

ME-L:

You present the debate as a choice between "all the fanatics who want to see western civilisation rolled back a thousand years" and George W. Bush. That is a false choice. The choice is whether or not we will stand for unlimited executive power, in the hands of any president.

And again we get supposed false choice answered with false choice. I don't think anybody is arguing for unlimited executive power. (I include all members of the Adminstration in this statement, something with which you might disagree.) The question is fourfold; what's Constitutional, what's legal (different question), what's reasonable, and what's effective in terms of intelligence gathering.

On three of four counts, I'm good with what the Bushies have done. (The legal part bugs me; if FISA was/is a problem, it should be fixed, not ignored. But I'll get to that in a minute....)

With regards to the Constitutionality question, it isn't as cut-and-dried as you make them out to be. Reasonable people with IQs well into triple-digits can make cases both ways.

Whatever, the truly disingenuous part of the the story is that it has been cast as "spying on Americans"; from my reading the folks on the other end of the calls were foreign nationals with suspected links to terrorist organizations. If I'm calling a bank contact in Kuwait who happens to handle accounts for the bin Laden family (unbeknownst to me, obviously) I'd be comfortable with HRC herself listening in, assuming information about the Rose Law Firm didn't come up....

Every Administration will protect it's ability to protect the country -- given. Every Congress will protect it's responsibility to serve and protect the electorate -- given. The Judicial Branch will vigorously protect its responsibility to ensure the rule of law -- given.

Under these conditions, I suggest you save some of your ire for the members of Congress who were either too busy running off to Syria to conduct personal foreign policy to actually do anything about their briefings. If there were concerns (and Brother Jay now says he had them) then a Congressman's responsibility to the country is to propose legislation to fix the problems, and let Congress debate.

But as you point out, that never happened.

And Patrick, I HOPE I'm on some kind of list with my travel patterns. It's my government's responsibility to watch out for my safety and the safety of my family, and if that means them asking me extra questions when I cross the border then hell yes. And if it gets more invasive than that, HRC is my Senator and I'll give her a call.

Finally, ME-L, I'm a little offended that you would imply that I'm attacking the quality of anyone's patriotism. (And I really prefer to not think you might be attacking mine.) I'd be comfortable arguing that the Constitution is one of the top 10 most important pieces of writing in the history of history, and I put protecting it right up there with protecting my family.

P.S. On a less serious note, I'm glad to see you so fervent in protecting the Constitution as well, and I can't wait to read your future defenses of the Second Amendment....

P.P.S. - Patrick, since this story broke Bush's numbers have gone up, and 64 percent of Americans think the program is a good idea.

So yeah, I think it would have changed votes, just not in the direction you probably preferred...

Huh?

Don't forget the "logic" aspect when trying to make a point.

Kofi: who are you huh-ing?

Mark: The question IS the illegality of Bush's actions, not their efficacy or reasonableness. The Constitutional question, I believe, is whether or not the president ever has the authority to act outside of the law. Remember Iran-Contra? Watergate? Monica? The law must define the limits of the president's power. Otherwise, who watches the watchmen?

I don't believe anyone, within the administration or without, is actually advocating for total power in the hands of the executive -- a complete dictatorship. But if the law no longer defines the limits of the president's power, what will? If an American citizen can now be held without trial, or American citizens can now be wiretapped without a warrant, what's next, and who will decide that? We're just supposed to trust them? Jefferson, Madison, et al. would be out in the streets.

The issue is not who the NSA is listening in on. If they want to tap into your overseas call to your Saudi bank, fine. Just get a warrant. You can even get it after the fact, I believe. Several commenters -- Americablog and Stephen Kaus -- have made the same point about the poll you cite. The question asked was "should [the NSA] be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States" -- not should they be able to do so without a warrant.

And yes, Mark, you're right -- Bush's numbers have gone up. At least they're better than Nixon's now at this point in his term...

You might also be interested in this statement from a radical">http://www.nsa.gov/coremsgs/corem00003.cfm">radical group:: "Americans expect NSA to conduct its missions within the law. But given the inherently secret nature of those missions, how can Americans be sure that the Agency does not invade their privacy? The 4th Amendment of the Constitution demands it... oversight committees within all three branches of the U.S. government ensure it... and NSA employees, as U.S. citizens, have a vested interest in upholding it. Respecting the law is only a part of gaining Americans' trust. . . . The American people need to know, within the bounds of operational security, what NSA does and why they do it, and how they work within the Intelligence community and the Department of Defense to protect the Nation's freedom."

Oh, and sorry for the "patriotic" thing. I just had my dander up. No aspersions were meant to be cast.

PS My favorite amendment? The Third. Does anyone else remember that SNL sketch?

Mark:

I’m going to keep this brief, since we’ve had ugly pile-ons here before and they don’t further the discussion.

You think I’m a little keyed up about this. I think you’re being rather flip with my freedom from government spying. So is the ‘proper’ reaction somewhere in the middle? Maybe.

We’ll never know because we can’t prove something that never happened, just like Cheney can’t prove that this administration’s efforts have prevented terrorism.

Which was part of the point of my post, that we have to discuss the actions taken (unilaterally circumventing a duly established court of law) in the realm of theory, not in the realm of practical effect. *Of course* if you’re not doing anything illegal you don’t have to worry about the government spying on you. And in that case there’s no reason you can’t be watched 24/7, either. Except that there are boundaries, and what we’re talking about is where they are drawn. They were drawn somewhere by FISA and Bush chose to ignore them. That ain’t FUD, it’s fact.