Charles Fried makes it:

The president claims that congressional authorization for military action against Al Qaeda, together with his inherent constitutional powers, make such action lawful. There is some plausibility to that claim but until tested in the courts it is impossible to give a definitive opinion about it...

...it is likely that at the first, broadest stages of the scan no human being is involved -- only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.

If the situation is as I hypothesize and leads to important information that saves lives and property, would any reasonable citizen want it stopped? But if it violates the Constitution can we accept the proposition that such violations must be tolerated?

RTWT

Those on the left that are up in arms about these searches being unconstitutional are not being accurate. The constitution actually only prohibits "unresonable searches". There are several examples of non-warranted, legal, (presumably reasonable) searches at present: high school lockers, private property that is in plain sight, police in pursuit, and the list goes on.

As I wrote in my blog at
politicalfred.bl*gspot.com
The forth amendent provides explicit protections against "unreasonable searches":

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Through legislative rules and judicial case decisions we have properly come to define a framework for reasonable searches. That is to say that the constitution /*authorizes*/ searches -- the details of which are defined by congress and judicial interpretation. It is a defensible argument that a new concept in searches (computerized data mining through the indexing of telephone connections) could be ruled a "reasonable search" given the probable cause provided by the existence of terrorist organizations. This would have to be legislated by Congress or be interpreted to exist within current legislation and stand up to potential post-facto court challenges.

Fred,

If there's one thing the Sophists of ancient Greece demonstrated, it's that there's always a "defensible argument". For a sufficiently loose definition of "probable cause" or a sufficiently exclusive definition of "persons, houses, papers, and effects", we can always make any search "legal".

Frankly, there's a lot about these warrantless searches that sounds pretty iffy to me. First, oversight appears to be limited. Is this program being used strictly for the claimed purpose, that is, counterterrorism against Al Qaeda and other active terrorist groups? At least the appropriate congressional committee appeared to be briefed.

Second, the scale of the searching appears "vast". If we analyzed the breath of every US driver for alcohol and other drugs, we'd easily save more lives of US citizens each year than have ever died in terrorist attacks. Why are those searches considered "unreasonable"? Probable cause is present after all since there are drunk drivers.

Finally, there is the matter of building sound legal cases against people who commit crimes of terrorism. It appears that the questionable legality of the NSA searches is already being exploited by defense attorneys in terrorism cases. Recall the US already has a pretty poor record of actually convicting people of acts of terrorism.

Is this program being used strictly for the claimed purpose, that is, counterterrorism against Al Qaeda and other active terrorist groups?

There is, so far, no evidence of the alternative.

Finally, there is the matter of building sound legal cases against people who commit crimes of terrorism. It appears that the questionable legality of the NSA searches is already being exploited by defense attorneys in terrorism cases.

The purpose of the program is not for the criminal justice system. It's to fight a war--in this case, to prevent acts of terrorism. If we end up getting successful criminal cases, that's a bonus, but it's not the purpose.

This is all something I've been thinking about a great deal the last week or so, and I think, addressing Fred above, that there's an argument to make that attenuates yours somewhat.

I concur that what is "reasonable" under the fourth amendment varies with the times. I certainly agree that security concerns in the wake of September 11 have to be addressed. Though I might resist such arguments aesthetically, or as a matter of personal political inclination, I have to concede that I could probably be arm-twisted into agreeing that the fourth amendment authorizes searches, even broadly construed, of the sort the NSA warrantless domestic surveillance program has conducted.

I would not, consequently, claim that these searches are unconstitutional.

I assert that they are illegal. They violate statute, which in this particular case, is FISA.

You might come back with the argument that constitutionality is the greater concern. Granted. But to permit that which is constitutional in the face of that which is prohibited by statute is to say that the fourth amendment represents an upper limit on the freedoms of Americans, rather than a lower limit.

That troubles me.

Jane,

I am not a con-law lawyer, but others on the web (hugh hewitt) have argued that the actions are within the statute. I'm not sure that I agree that they are within the statute; I am aware that other presidental administrations have asserted the same authority.

If you view the matter as "Bush and co spying on Americans" its pretty easy to be upset. If you view the matter as "The Gov't prosecuting a war to defend the country" then it is easy be upset with the nay sayers.

If the gov't was doing this for the drug/alcohol laws I'd be the loudest civil libertarian. But a war ( 3000+ dead Americans in the lower 48 is pretty clearly a war ) is a war.

Cheers

--Fred

Karl:

If these searches were being used outside the context of war, then I would find them unconstitutional (unreasonable). The fact that the searches are vast (a fish expedition) doesn't really matter since I don't think that fighting a war needs to meet domestic legal considerations.

I think that terrorists should be either held indefinitely without trial or executed by the laws of war if appropriate. (un-uniformed fighters, aka spys, aka terrorists have been historically executed shortly after they are identified.)

--Fred