Re-reading your post, I mis-read you.  Yes, laws are laws, and I see no reason to suspend them.
Also, I really have a typo problem.  Sorry for that.
In any event, there is nothing about the War on Terror that can't be addressed by our curren set of laws.  The mere idea that something new is needed indicates a sense of self-importance and righteousness that the Constitution was designed to prevent, or at least undermine.

One unmentioned (and maybe unmentionable) factor in all this is NSA. Their culture of secrecy makes everyone else look like blabbermouths. Also, and perhaps more to the point, NSA is a very big operation that has been looking for a mission since the decline and fall of the Evil Empire. Domestic eavesdropping is a big job, and the technology is right up NSA's alley, but it's politically unpalatable... however, given the current Administration's authoritarian tendencies, I'd bet that the powers-that-be at NSA saw an opportunity and went for it.

And please note... This is complete speculation on my part. I have no actual knowledge about anything.

Re: Speculation of a culture of secrecy post-------------
Great observations!
I just speak my mind, without having thought much as to the intended and unintended consequences because I believe intellectual freedoms constitute the fount for innovation, creativity, and genuineness. 

Let me start out by saying I would support a technical program that, say, recored all electronic communications within the US, and that applied a technological filter that looked for patterns, raising alerts when suspect patters are found. From there NSA, or whoever, could obtain a warrant, and retroactively look at any relevant information as specified in a warrant.

I doubt most Americans would support such a program, but I think I would. Of course, it would depend on how the program was setup. The point is that it needs to be established, and there need to be rules regarding how this program would be run. There needs to be a court that looks at these warrants based on technological patterns. There needs to be some oversight on developing the patterns, etc.

As Matthew Yglesias says, there needs to be a law. This type of thing, needs to be endorsed by the citizens of the US, trough their proxies in the US legislature.

Obviously, I have no idea what the actual program under discussion is, but whatever it is, it needs to be endorsed by Congress.

Here is Alberto Gonzales on this programs prosepcts for receiving legislative blessing:

ATTORNEY GENERAL GONZALES: This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.[Emphasis mine]

I included the entire paragraph, because ATTORNEY GENERAL Gonzales does claim what they have done is authorized, but I think as MYglesias says this argument is plainly wrong. The part I highlight really seems to make it very clear that they do not believe they could get support for this.

As an aside, the argument that publicly attempting to get this program authorized would jeapordize the program is not approaching an acceptable reason - actually, in my mind it is in the same category as torture. If it is so necessary for national security to break the law, than any patriotic American would be happy to face the legal consequences, which, in this case appear to be impeachment.

This "domestic spying" is wrong in so many ways that it is difficult to know where to begin.  However, one point scares me the most:  Bush made a decision to authorize an arguably unconstitutional usurpation of power (perhaps an impeachable offense?), then he made sure he told a limited number of Congress, then he made sure they could not do anything about it!  The greatest tyranny in this is ultimately the binding of the checks to his power. The institution of Congress (and now perhaps the Courts) have been effectively removed from the governing of the country.  Democrats have, until very recently, been absent and impotent; i.e., the political checks to power have also been effectively removed.  And so, it is no surprise that the abuses of power have escalated from relatively small bits of corruption, to larger waves of corruption, to dictatorial decrees in secret.  Bush can say, "I told Congress" and then he should finish the sentence: "I told Congress and then made sure they couldn't do anything about it." Now you know why he is always smirking, he DOES know something you don't know...and you may never find out what it is.  This administration should be named "the pick-pocket government." 

Beyond the illegality of the Bush Administration, Josh and Kevin's theory presents some interesting questions about what happens when technology and privacy collide.  As I explained above, email is already afforded significantly less legal protection than phone conversations.  And there's little doubt that the federal government gathers and analyzes massive amounts of quasi-secret information including credit card and plane ticket purchases, as well as the web traffic of ordinary citizens.  

Depending on the size of its system, NSA may even monitor information like the location of all ATM withdrawals and traffic data (based on recorded images of license plates) for the entire country.  In other words, they probably know what you buy, know where you travel, and have the ability to track your movements on a micro scale, depending on how "plugged in" you are.  Americans seems comfortable with some, if not most, of these intrusions on privacy.

It probably isn't our interest to fight the technology.  Doing so only drives it underground to be misused, like Dubbya's NSA program.  The smart thing to do is acknowledge that this information is being gathered and work to safeguard our freedoms with traditional legal tools.

There are several "bottlenecks" in the legal system that require judicial review.  Each can be adjusted for technology:

Probable cause - when is the information a law enforcement officer sees with his own eyes sufficient for him to act without a warrant?  Arguably, for answer for electronic information like this is never.  He will always need a warrant.

Getting a Warrant - should warrants be given by secret courts?  Perhaps in areas of national security, but I think the FISA court should take a far more active role in saying, no, this does not meet the FISA threshold...and kicking the case down to a traditional court.  In such a system FISA's job would expand from a simple yes/no to one where they'd would have the obligation to refer cases to a traditional (non-secret) court for a warrant if the government did not present sufficient evidence that national security was at stake.  One thing's for certain: the government should not be able to justify using secret courts just because the information gathering system is secret.  Secrecy should depend solely on the severity of the threat to national security.

Admissibility at Trial - at the end of the day, this is often the biggest concern.  How much of this stuff can be used against you directly?  Congress can pass stiff rules allowing only certain evidence derived from electronic searches into court.  At the end of the day, however, it may come down to traditional judicial descretion: if the prejudicial impact of the $500 you spend a year on online porn outweighs its probabitive value, it should be suppressed because of relevance.

Denial of Priveleges - Why are you on a "no flight" list?  What other lists are you on?  This stuff needs to get out of the exclusive hands of the executive branch and into the hands of Congress and the judiciary.  Again, they cannot rely on the secrecy of the information-gathering tools to justify secret, extra-judicial sanctions.  Even if you can't contest the legality of how the information was acquired, you must be able to contest whether the information is true, and whether the sanctions are warranted.

-----

We are not powerless against this stuff.  An outright ban on largescale information gathering technology may be unrealistic.  Building in legal protections that protect individuals without compromising the secrecy of the information gathering tools is realistic, however.  The government can use its data.  It can point to it and say "this is what we know, therefore we deserve a warrant."  It may even be able to use some of this data in court.  What government can't do, however, is claim that the entire judicial process should be conducted in secret just because it has some fancy new toys.  

unless congressional Republicans are upset about this, there are no consequences. none. when the body that's ostensibly in charge of punishment is effectively united behind the law-breaker, the laws are irrelevant.




I think Matt was talking about it not passing muster with the public at large, not Congress.




And this is really the crux of the issue. The reason the Republicans have no interest in policing the Administration is that they are not paying a price at the polls. Democrats made a huge stink about the PATRIOT act in 2004 and they still lost. As long as the country feels under threat from terrorism, the people will put up with civil liberties infringements, especially theoretical ones which of course the vast majority of people don't even notice anyway.




The rich irony here is that of course for years it was conservative Republicans who sounded the alarm about anything with even a whiff of government surveillance on the population. Does anyone remember the debate over a national ID card, a basic security measure that would make it much easier to verify anyone's status? That idea is dead in the water due to Republican resistance.




The worry for me here is that once again you have a situation where Democrats are not on the "security" side of a political debate. I'm not saying Democratic anger about this domestic spying thing is wrong on the merits. What I'm saying is that you have a consistent pattern of Democrats appearing unconcerned with security. Or to be more precise, Democrats appear to think the security is less important than other considerations.




All it takes is another terrorist attack on the US homeland, even a relatively small one, and the politics of security will change dramatically. Republicans will have an easy time once again painting Democrats as unserious on security. And all the incompetence, venality and unpopularity which now characterize Republicans will be washed away as the public's fears guide their vote. On the present course, Democrats will get crushed in such a situation.




What Democrats need is innoculation from this possibility. There needs to be a security issue that Democrats can point to where they stake out an unmistakably "tougher" position. The obvious candidate is security around ports, chemical plants and other domestic targets, which the administration has short-changed.

It was perfectly clear by roughly 9/18/01 that this President was willing to govern by fiat.  

The way the Patriot Act was force-fed to the country with no legislative debate, or even sufficient time for legislators to READ the bill, was a complete and utter violation of the spirit of the United States Constitution and the basic principles of democracy.  The overwhelming majority of the bill was fundamentally unobjectionable, and would have quickly passed under ordinary procedures, but this just wasn't good enough for President Bush.  He asked for a rubber stamp, and only one solitary Senator had the courage to say "no."

The specifics of the Patriot Act should never have been the focus of opposition.  It was the thuggish, quasi-fascist power grab in Congress that should have set off the alarm bells.  Here was a President who refused to take "no" for an answer.  Yet the American public, dazed and hurt after the terrible terror attacks, hailed this thug as a hero.  He was given nearly free rein to govern without limit or oversight for three years, and narrowly (but decisively) re-elected by promising more of the same.

Some of us were outraged by this power grab.  We were a distinct minority in September of 2001, and we were publicly scorned as traitors or "a decadent fifth column", and we were even perversely accused of "hating freedom."

Now, four years later, as the wounds from 9/11 heal, Americans are increasingly starting to second-guess Bush's heavy-handed, above-the-law leadership style.  Suddenly, the sensible moderate New York Times readership is shocked to discover that the President viewed statuatory restrictions on executive power as optional, and chose to personally "check and balance" himself, instead.  Now, at long last, the media has finally begun to ask the tough questions.  Now the opposition party has begun to hesitantly suggest greater oversight.

Where were you when we needed you, fair-weather patriots?  Where were you when this country had the opportunity to defend its freedom and chose instead to cower behind a "strong leader" and enable him and his  spectacularly arrogant advisors to thoroughly corrupt themselves with power?

Where were you when it was perfectly obvious that this President was willing to incarcerate American citizens without charges  indefinitely four years ago?  You certainly can't expect anyone to take your concerns about the niceties of surveillance seriously now, if you weren't concerned enough to mind the store while it was being looted.

Abjectfunk, I would rate your comment much higher if possible. You posted an instant classic! Thank you very much.

And please note... This is complete speculation on my part. I have no actual knowledge about anything.

Me too. I know nothing about nothing. I sit here blind and deaf, just speculating. I have personal knowledge only of the lint in my belly button. Ok, now that that is straight - your analysis is absolutely right. A government agency that operates in absolute secrecy can pretty well do as it pleases, as long as it can persuade Congress that there is some need for it's services. And, the NSA fits that definition to a T.

...we should all agree that whether or not we agree with such a program, certainly, it should not be done secretly, and that Senators briefed on the program need access to staff, and that the program needs to be grounded in actual law.

Once again, NO! Instead, our laws need to be grounded in the Constitution. And, that constitution prohibits warrantless searches. Any law that attempts to circumvent the Constitution is unconstitutional. The real risk we face now is not terrorists, but fascism. And, only the Constitution stands between us and a fascist dictatorship.

Once again, NO! Instead, our laws need to be grounded in the Constitution. And, that constitution prohibits warrantless searches.

The Constitution prohibits "unreasonable" searches.  A warrant has been determined to be a proxy for reasonableness in constitutional jurisprudence.  There are numerous exceptions, however, to the bright-line rule against warrantless searches. 

The idea that the legislature has a role to play in the constitutional debate over what constitutes a reasonable search is fully consistent with a liberal democracy.  The idea that the executive branch has sweeping authority to unilaterally decide what is reasonable, however, is fundamentally inconsistent with democracy.

Bush has publicly confessed that he has committeed a federal felony with 5 years jail time for each offense and violated the 4th Amendment to the Constitution 30 times and he said he intneds to continue to commit the Federal felony and violation of the 4th Amendment to the Constitution continuously into the future.  How could that not be an impeachable offense?

If the spying Bush wanted to do was tied to terrorism or national security, a warrant could have been obtained from the special FISA court.  Bush has used the FISA court repeatedly in his make believe 'war on terror'.  In it's history, the FISA court has only turned down requests for warrants four times.  Bush could even have gotten a warrant after the fact under FISA.

So who was Bush spying on?  We know he has Homeland Security, the FBI and the military spying on civil rights, animal rights, anti-war, enviornmental, anti-poverty and charity groups membered by American citizens and people that want to read certain books on a secret watchlist.  Is he just duplicating these efforts at destroying American civil rights?  More likely it was a do-over of Nixon's 'enemies list;'political opponents like Wilson, Clarke, O'Neill, Democratic Senators and Congress people.  FISA was passed precisely to prevent political spying by a President, a repeat of Nixon's enemies list.  The Supreme Court in an 8-0 decision said warrantless searches by the President were  unConstitutional.

The justification Bush is using is the same one he's employed for disappearing, torturing and killing people without charge or judicial review in the public and secret gulag of prisons Bush has established. By using the metaphor of a "war on terror', like war on drugs a war on poverty or a war on a football field, Bush, as Commander-in-Chief, can disregard the Constitution, the Bill of Rights, any US law  or treaty to which the US is signatory.

But the argument goes, this war is different.  That's true.  Other wars the US fought involved an existential threat to the United State and involved far more casualties; but warrantless searches by the President were NOT allowed because the US was a democracy governed by the Constitution.  The mythical 'war on terror' has taken about 10,000 noncombatants lives (not counting the ones the US killed) and is against small groups of  anti-Americans usually acting independently that are scattered  around the world.   Terrorism  is a police matter and that's the only way any terrorists have been found. The military has turned-up squat.

As Bush has said the 'god-damned Constitution is just a piece of paper' and he'd prefer a dictatorship to a democracy, as long as he was the dictator.  Bush's values are the exact opposite of American values.  He has lied us into a war and still conflates those lies after they have been proven false.  A war of aggression, as they said at Nuremburg, is the ultimate war crime. The disgusting thing is that polls over the weekend show Bush's approval ratings going up.  So the "Victory" PR campaign the sociology professor cooked up is working.

The Democrats should present articles of impeachment against Bush and Cheney for all of their crimes and incompetence since Bush s Reichstag fire, 911, and his incompetence for letting 911 happen in the first place.  Although it would not get through the House because of the Republican majority, it would be a way to refocus the American public on what Bush really stands for:  torture, spying on Americans, disappearing anyone anywhere without charge or judicial review, permanent war, a police state, limitless corruption and lying and deceiving the American public and the Congress; all the time using 911 to institute programs that benefit only the ultrarich, war and disaster profiteers and megacorporations that bribed Bush and his cronies.

But the use of the NSA spying was not for catching illegal activity, it was for political purposes, just like Nixon's 'enemy's list' or J. Edgar Hoover's blackmail files.  Bush has used FISA extensively since 911 and it's lax and flexible enough to rebut all of Bush's claims regarding practicality.  No, this was for political purposes.  Bush learned his politics from the master of dirty tricks, Lee Atwater.  In his father's campaigns, Mary Matalin called him the 'terrorist' because whenever anything distasteful had to be done, he was the go to guy.  Now, collaborating with Karl Rove, Bush is having the time of his life being the dirty trickster.

Correct!  We're way more likely to die from cancer, a heart attack, work, acar accident, lightening etc etc than a terrorist attack.  The terrorists are not some nemesis from a James Bond movie, but small independent groups acting on their own.  They all call themselves al Qaeda because it makes them feel more important than they are.  How many die in a typical suicide attack?  A dozen.  Bush is more likely to use nukes than any terrorist will be and Bush is using WMDs against noncombatants every day in Iraq and Afghanistan.

Not as long as Bush owns Congress and the Supreme Court; getting Alito appointed should bag the Supreme Court.

Why not spam Echelon? You know, billions of e-mails with "keywords" in them . . .