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Wednesday, December 21, 2005

More On Warrantless Surveillance

The more I read and research on this topic, the more I'm convinced that the warrantless surveillance in response to threats from abroad is not unconstitutional. The key distinction that must be made, and is categorically not made in the reporting I've seen, is between wiretapping and surveillance in response to domestic threats versus international or foreign threats. As to the former, a warrant is necessary. As to the latter, it is not and clearly so. A Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority." So the legal bottom line is that warrantless surveillance for national security purposes is legal. That surveillance appears to have been mostly NSA intercepts of communications between persons in the continental U.S. and known al Qaeda operatives overseas. The "confusion" is caused by the intentional conflating of the law on wholly domestic eavesdropping with that involving eavesdropping on communications with persons abroad already determined or suspected to be connected to terrorist organizations. To put it bluntly, if Mohammed in Paterson, New Jersey is communicating by way of cell phone or internet with Mohammed in Damascus, Syria and the latter is known to be connected with a terrorist organization, that communication can legally be monitored without a warrant. If you don't agree that it should be so, well that's a legitimate point of debate. However, to conclude that it is unconstitutional is just plain wrong. Check out Powerline for more.

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