LOTS of points are NOT directly opposed...
Seems like many of us are grafting criminal law warrant requirements on national security surveillance efforts.
The point you raise is a tough one. If terrorists are to be surveilled (and attacked, imprisoned, etc) somebody somewhere has to identify who the terrorists are. Who do we want to hold that responsibility?
I gather from your remarks you believe it should be a judge. Someone who is unelected and serves a life term, unaccountable to the citizenry. A natural choice, I suppose, given that judges are responsibile for deciding important civil matters. But international terrorism isn't a civil matter, is it?
Right now, there is no taboo "dragnet" of unrestrained and "no-reason-at-all" scrutiny of any U.S. citizens. Good. But how can we keep it from becoming that way if there is not a shred of of oversight? I share the concerns about an Orwellian eternal "war" upon whose altars we sacrifice too much liberty and freedom from government.
But I perceive a distinction between civil matters, and execution of foreign policy, and operations as Commander-in-Chief even if there is not a classical "declaration of war."
IIRC, during the Reagan years, we had a SCOTUS opinion that US operatives could kidnap folks overseas and not run afoul of "unreasonable siezure" per 4th Amendment. Well-settled, apparently, but there's always the "Dred Scott" factor. Likewise, I see no legitimate questioning of the President's spying on foreigners of any description as part of his intelligence efforts.
So, warrantless kidnapping and snooping outside the US is perfectly okay as an exclusively Presidential exercise of power and I see no reason for oversight. Leaks happen often enough and I believe King George II has a point when he says, in so many words, it's not a good idea to tell the enemy what we're doing.
A key criticism of federal anti-terror efforts from before 9/11, from the comfortable hindsight after the fact, involved the "walls" between the international intelligence communities and the domestic law enforcement communities. Many of us were demanding that the rules no longer be applied to ridiculous results. Pre-9/11, FBI can't spy in the U.S. and even had some serious limits on infiltrating groups to see whether anything was up. But hey, what "reasonable expectation of privacy" do you have in a MEETING with a date, time and place published amongst your mere acquaintances?
But, "searches" inside the US must still be "reasonable" for all the "people" regardless of national origin, etc. "Reasonable" is presumed when a warrant issues. Executive and Judicial branches balance out, in theory at least.
Here, we have half the conversation in the US and half outside, and the point of interception has been described as outside the US. I haven't heard reliable word that it was only calls ORIGINATING outside the US, but that distinction is most likely meaningless anyway. I guess Bush & Co. would be on solid ground if they listened to ONLY the foreign half of each call.
Seems like the law is NOT settled on this particular intersection of foreign surveillance and domestic privacy rights. The strongest argument may flow from the question--"What reasonable expectation of privacy do I, in the USA, have in my international phone calls and e-mails?"
Since other governments are not so noble, perhaps no expectation of privacy from British surveillance may make it unreasonable for anyone to expect any privacy in any cross-border communication.
(Some might even argue that the very existence of a FISA court is unconstitutional, as it usurps the executive's authorities as commander in chief and arbitor foreign policy and international affairs. The constitution never delegated any authority to the judiciary to decide matters of war and foreign policy, and yet the FISA court claims exactly that authority for itself. But that's not the question you asked.)
One point often LOST on far too many people in all of these debates is that just as the President cannot legitimately act beyond the Consitution, NEITHER CAN CONGRESS! "There ought to be a law" on the federal level should always be followed quickly by "but CAN they do that?". FISA may be good only so far as it involves a human body sending or receiving communications from inside the US. I'm not sure it really applies to "pass-through" communications that are routed through the US between foreign lands and shipping lanes and anywhere else. The fatal flaw with FISA and the Bush critics appears to be the most useful anti-terror after-the-fact judicial reviews appear to be available for only a few weeks after a declaration of war. Correct me if I'm wrong here.
It's the intersection of the President's carte blanc on foreign matters and Commander-in-Chief intelligence, and what has traditionally been Constitutional restraint on law enforcement scrutiny.
Perhaps the answer is just that this type of domestic "spying" violates no "reasonable expectations of privacy" in cross-border calls and e-mails, especially if the "fruits" of such searches are never used in criminal prosecutions. ???
