There�s a lot of confusion out there about the illegal wiretap scandal.

First, capsule this is not a constitutional issue. The Bush Adminstration portrays it as one in two ways. First, treat it points to case law that suggests that it is not a Fourth Amendment violation to eavesdrop on international calls for foreign intelligence purposes. Second, story it says that the President has the constitutional authority as the Commander in Chief to do whatever he deems necessary in fighting a war, here, the war on terror, or terrorism.

The first point, if true, is irrelevant, because statutes prohibit eavesdropping on American persons without a warrant. Statutes can and do provide more rights that the constitutional default.

The second point is bullshit. There is zero legal authority for it and it is part of the Bush Administration campaign to grab powers for the executive branch. They actually claim the founding fathers wanted the president to have king-like authority over foreign affairs. The case directly on point, which Bushies failed to cite in their terror memo because it eviscerates their argument is Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 US 579. The case says the President can’t evade the will of Congress, even in wartime. Simple enough.

Therefore, this is a rule of law issue. Can the President break the law? Here, the President broke the law. The law says if the government has probable cause to believe an American citizen is an agent of a foreign power, it can intercept his communications. He just has to get a warrant first. Bush didn’t.

Recent polls suggest that many Americans support the wiretapping. But whether people think the wiretapping is useful or not isn’t the question. For example, in the link above, one woman said, “surveillance without a warrant could be justified if the government had good reason to suspect someone of involvement in terrorism.” That is, in fact, the law. In fact, you could get a wiretap warrant even if the person wasn’t a foreign agent under this standard. The only thing is, you have to go before a judge and have it reviewed.

The problem with the “majority of Americans” story is that we don’t know what they are being asked. I also think that if the people eavesdropped on were working with terrorists that they should be surveilled! I just think there should be a warrant, and I know that a warrant isn’t an obstacle to timely surveillance. I bet the vast majority of Americans agree with me.

The right wing press has some BS out there about how long and how hard it is to get a warrant for national security surveillance. It is not. It’s as easy as pie. There’s no opposition, you just put your reasons in an affidavit and take it to the FISA court (FISC). My friends in the Justice Department they tell me it�s easy, but you don�t need anecdotal evidence. Look at the statistics. We know it�s easy, because FISC almost never turns the government down. And as for timing, FISC does nothing but give the government warrants, and the statute allows the government to do the surveillance and get a warrant 72 hours later. Three days to get a warrant? It would take a few hours at most. Besides, don’t we want the judges to make some review of the claims the government makes? That’s what we mean by “checks and balances” and “separation of powers”.

Ok, the President broke the law. We know that. The next question is, should the law change? Prof. Fried�s op ed suggests that it should, in a particular way. Essentially, he suggests that data mining is an important tool in detecting terrorism before it starts and it should be approved. A lot of pundits are hypothesizing that this is the kind of surveillance they were doing, particularly wrt the stories about having tapped in to the phone trunks.

Point one, if you agree, go to Congress and get the law changed. You’re the frickin’ President for god’s sake! Put Social Security reform and ANWAR drilling on the back burner.

Point two is that computer automated mass surveillance, while it sounds good, actually might not work. People think casting a wide net catches more fish, but the holes are bigger and there’s the needle in the haystack problem. Remember that information ? intelligence.

Another interesting question is how privacy invasive is mass surveillance, since you aren’t targeting a particular person. This question will be particularly relevant if point one happens and point two is wrong. We might be willing to put up with a less effective program if in balance it doesn’t compromise privacy too much. One way to look at it is that you are only collecting guilty info, and you don’t know anything about a particular person until you know they are guilty, so its not really privacy invasive at all, unless you think people have a privacy right in criminal activity. Another way is that by we don’t want a world with perfect legal enforcement, that we depend on some crimes slipping through the cracks. So we could authorize this mass surveillance, but only for national security offenses, not for marijuana, e.g. There’s more thinking to be done on this matter.

Meanwhile, the stalling on the PATRIOT Act renewal shows that Congress is pissed and mistrustful, and it should be. The President broke the law. The President thinks he’s above the law. And the Administration claims about how well its doing on the terror front are in myth-land. The false articles about how well things are going in Iraq and the sunshiny reports offered here at home? The failed terrorism prosecutions of Florida professor Al-Arian, and a web programmer Al-Hussayen (registration required to read the stories), the right-wing Fourth Circuit’s concern about DOJ manipulation of the Padilla case, the pursuit of an Oregon lawyer for the Madrid bombings, long after Spanish authorities told the US that we had the wrong man. Perhaps there are signs of some competence, but there’s a serious amount of incompetence. And it�s to mitigate the transgressions of any one branch that the founding fathers established the three branch system of government.