This started out as response to a post that Johnny left here, regarding the legalities of the recent wire tapping story. I don't claim to be any kind of an attorney. My first reaction to the story was "Holy shit, with all the terroristic activity that is going on abroad, the Fed is listening to my mother yammer on and on in my ear, and reading my thoughts here on the upcoming Bear's SuperBowl. Needless to say, I was rather alarmed. But, once in a while, I tend to consider things outside of my average existence.

There is a great dissection of the legal verbiage here. Indeed, it will take you some time to wade through. What is detailed are several cases where information is transfered, be it mail, electronic or voice across the borders of the US. Under the Fourth Amendment and current precedent, your computer can be checked at a customs stop. Your mail can be opened in the same manner, as a means of protecting a States' sovereign interests. So can your alimentary canalall without a warrant. Actually, I have a buddy who was serving in the US Army, in Germany. The Army opened one of my letters before they delivered it to him, So it goes. Anyway, the post 9/11 application of this precedent is to phone calls, e-mails and data that can coordinate terror cells across sovereign borders. No, I don't think the founding fathers had phone tapping in mind when the fourth amendment was writtem. They didn't have ass-cavity checks in mind either, but there they are.

I tend to think that material can apply to information/data, and consider that technically speaking, that material does cross sovereign borders. But, let's put that on the shelf for now and go after FISA.

Electronic surveillance is not permitted unless a few exceptions are met:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that
(A) the electronic surveillance is solely directed at
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

So the take-away there is communications between foreign powers is open game. The next logical question is what is a foreign power? Again thanks to Volokh for digging through this.

(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

It is interesting that in 1978, the definitions of terrorist group existed, but were not selected as exemptions. But Beruit didn't happen until 1983.

And then, there's this brief that explains the Article II rationaleyawwnn, sip.

For me, the questions are bigger than is this a legal action, did the President overstep his authority, should W be impeached, etc. After reading through the above, there's definitely a ground the Administration can utilize as a base for favorable arguments. So, I can understand how Bush justifies the actions, in his own mind. Whether or not there is an judicial inquiry is another issue. Since I tend to side with the gov't, the questions I have are as follow

1. If a party similar to the 9/11 hijackers were to be home-grown, versus imported/immigrated, how else does one expect to intercept communications between this party and counterparts abroad?
2. As the legislation that supports our law enforcement is updated to accommodate modern tactics, how are terrorists, enemy combatants, prisoners of war and detainees defined?
3. What are common citizens willing to concede in an effort to gain more security against evolving risks?

Additionally, I cannot help hen-pick the critics on this. So much bullshit is leveled at W from so many directions, in a time that is tumultuous at best. From one side I hear that W did not do enough, pre-9/11, to thwart terrorism. On the other end of the spectrum, I hear that he is too draconian in his efforts. Is there a middle ground? If there is, how is it attained in a climate of piss-and-vinegar, good 'ole boy politics?

And honestly Johnny, you can accuse the man of using executive privilege to spy on his political counterpartsbut that is bullshit of the highest order.

Update

Chuck made a comment that brings up a subject that is worth pulling back up to the surface. Echelon, which IS a gov't supported surveillance system does in fact monitor public phone calls. The program has been around since the 50's and most recently abused byClintonfor economic purposes.

In 2000, former Clinton CIA director James Woolsey set off a firestorm of protest in Europe when he told the French newspaper Le Figaro that he was ordered by Clinton in 1993 to transform Echelon into a tool for gathering economic intelligence.

"We have a triple and limited objective," the former intelligence chief told the French paper. "To look out for companies which are breaking US or UN sanctions; to trace 'dual' technologies, i.e., for civil and military use, and to track corruption in international business."

So, if investigations prove that Bush misused the information gathered, like the weed you smoked in 1980, then ring the impeachment gongright after Clinton. Gimme a fucking break.