I find your understanding of the legal issues to be incomplete at best.
It is widely regarded that the actions previous presidents took in wartime were in excess of their powers and inappropriate (suspending habeas corpus, japanese internment, restricting free speech,...).
The courts have 1) never definitively affirmed the enemy combatant status (On Padilla,the 4th circuit agreed, the 2nd disagreed, and the Supreme Court has not weighed in yet-but the administration was afraid of their answer so they charged him in Florida on an unrelated crime; On Hamdi, they disagreed strongly), 2) always treated electronic communications as protected by the 4th amendment (and ISP's cannot give permission to bypass the courts and listen in on specific conversations-this is not a legal way to gather evidence, to make a suggestion otherwise is absurd), and 3) expressed concern over the known executive branch power grabs before the NSA wiretapping became public.
There are really only 2 reasons they don't use FISA to get court orders for these wiretaps (you can get a roving wiretap, and FISA is a rubber stamp-rejecting only 5 out of 19,000 requests so far). First, the reasons for your tap are so outlandish that you can't even try to justify them on a piece of paper. Second, you are conducting so many taps that it is impossible for you to make that many requests. The idea that the Executive branch wants to assert its authority in defiance of existing law is a VERY forgiving interpretation that is not consistent with the facts.
As far as justifications, it is clear that the administration is intent on taking the courts out of the role of supervising law enforcement, and inserting law enforcement into that role. As you should be duty-bound to point out, this has a long history of working out poorly for citizens elsewhere.


[ reply ]

Link to this comment: http://www.securityfocus.com/comments/columns/379/32946#32946