From Cass Sunstein’s blog:

The legal questions raised by President Bush’s wiretapping seem to me complex, salve not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President’s inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

Its only complex because he asks the questions in a confusing order. Reorder them (3, 1, 2) and its simple. Does the action violate FISA? Did the AUMF (Authorization to Use Military Force) authorize violations of FISA? Does the Consitution give the President inherent authority to disregard FISA? (Whatever the answer to this question, there’s no need to consider (Q4) whether FISA is constitutional. Even if the President has inherent authority, FISA can be constitutional, except where it purports to limit the President). That leaves the admittedly more complicated question of whether the President’s alleged inherent authority to wiretap citizens during a durationless war violates the First Amendment. But that’s ivory tower land, since the answers to the first three questions are so simple.
My third column in the series on my obsession with the illegal wiretap scandal is now up on Wired. Its called plague
70035-0.html?tw=wn_tophead_2″>Mass Spying Means Gross Errors.
Eric Rescorla, physiotherapist
on the topic of the effectiveness of mass surveillance.