It's very, very simple: the NSA and other arms of the Executive Branch should spy on terrorists *within* the laws passed by Congress, and
*with* judicial oversight. Under the Constitution, the President lacks any and all authority to order anything different.The NSA program of listening to the content of telephone conversations in which at least one party is a "U.S. person" (not necessarily a citizen, nor even necessarily a permanent resident) is absolutely and unequivocally illegal and unconstitutional. "In time of war" the Constitution doesn't cease to exist, nor do its limitations on police powers. Neither the U.S.A. P.A.T.R.I.O.T. Act nor the Authorization to Use Military Force (AUMF) gave the Executive any such powers -- nor could they, since the powers arrogated by the administration are beyond Congress' authority to grant. The administration has even admitted that the reason they did not ask Congress to modify the law to permit this surveillance program is that they did not believe that the Congress would comply. In other words, "We figured you would probably say no, so we just did it without asking."
The other NSA program, of collecting telephone call records, is a bit more tricky, since it is (supposedly) not intruding into the content of the calls. There is considerable reason to believe that the telcos violated their own legal obligations to their customers (the privacy clauses in their contracts) by turning over the records without a court order, but the violation of the law -- if any -- by the NSA was certainly far less egregious than in the wiretap case. The Supreme Court has ruled that you do not have a legitimate privacy claim to the records of what numbers you called and for how long. Police have often sought call records as part of an investigation, although those searches were much more limited and much more closely tailored to the individual cases.
Of course, the other element in both schemes is the effectiveness and wisdom of the program. I don't know who first said it, but, "We're looking for a needle in a haystack, so wantonly piling on more hay might not be the best plan." We do need more data about the terrorists and their plans, but far more than that, we need more intelligent collection of data. There have been published reports that the FBI has been really steamed because the vast majority of the leads produced by the NSA's illegal espionage program have been wild goose chases -- a complete waste of the Bureau's resources without making America the slightest bit safer. Simply put, we don't have the resources to make use of the data we already have, so going after mountains of unsifted raw data isn't the best use of our capabilities.
But even if the programs produce some results, the question remains, at what cost? I'm not at all pleased at the idea of the government snooping through my private communications, or even knowing who I called and when. Do I have something to hide? Hell yes! Every single one of us has something to hide. Just because some activity is legal doesn't mean that it's in my interests for the world to know about it, and the line between the government's knowing about it and the world's knowing about it is altogether too thin.
Beyond that, our government has a long history of misusing such powers. The FBI wiretapped Martin Luther King because he was a subversive -- in other words, an "uppity n***er" -- even though he was acting completely within the law. President Nixon spied on his political enemies for purely partisan reasons. The Fourth Amendment is there for good reason, to protect the lives of innocent, law-abiding citizens from unwarranted intrusion by the government. To allow President Bush to ignore those protections, as he undeniably has, is the essence of treason.
Linc Madison * San Francisco, California * snipped-for-privacy@suespammers.org * primary e-mail: Telecom at LincMad dot com Read my political blog, "The Third Path" DO NOT SEND UNSOLICITED E-MAIL TO THIS ADDRESS. You have been warned.