The Executive does not need a warrant to surveil a conversation occurring entirely outside the USA, but does need one if either side is here.

Quite simply the President has committed a felony. The surprising thing is that there does not appear to have any need to have done so. The FISA court was created for the purpose of reviewing applications and granting warrants for surveillance, routinely grants them very quickly at any hour of the day or night, 24/7. The FISA court apparently requires a much lower threshold for probable cause than a regular federal court since of the tens of thousands of applications it has received in the 24 years of its existence it has only denied five -- and of those five, three were granted when rewritten. The investigating agency, whether NSA, CIA, or FBI, or ?... may apply for a warrant 72 hours after it has already intercepted a communication. Furthermore, the FISA explicitly contemplates a war emergency and specifically allows investigating agencies up to 15 days retroactivity. Clearly the President has gone beyond that.

The question is why has he done so. Since there are no valid national security reasons, the explanation must lie elsewhere.

Finally, it must be noted that the President's complaints about national security harm resulting from the NYTimes publication of the existence of the warrantless searches are baseless. One must assume that the terrorists assumed their communications were subject to surveillance whether or not they were alerted to the possibility of a warrant.

>>

I may be reading more into this, but does it say that had the NSA been monitoring
conversations between US citizens (with known terrorist connections) and foreign
countries, that we could have avoided 911?

Obviously, President Bush's approval of domestic spying is a huge story. As is usual, because of the scope of the story, and the possibilities of what all of us don't know, the response has been polarized in the extreme. (For...

I seem to recall a number of interlocutors and talking heads asserting that our intelligence agencies weren’t doing squat to prevent more attacks even after 9-11. Well here’s some proof from Outside the Beltway that they were (replete with...

Oh JJ, you did not just write that. Is Katz v. United States now an illegitimate misreading of the Constitution?

No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

* * *

Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any 'technical trespass under * * * local property law.' Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people--and not simply 'areas'--against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

* * *

It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.

Here's a round-up of blogspheric reaction to the news that President Bush ordered the NSA to spy on people within the United States (allegedly, only if they were communicating with people overseas): Hugh Hewitt: This is the big story of

I agreed with Scalia in Hamdi. American citizens are entitled to full due process rights. Even non-citizens who aren't enemy combatants are owed substantial due process. This is sheer information gathering.

As to warrants not being that difficult to get, that's apparently not true from a procedural standpoint per Levin. We'll learn more about that in coming days, I suspect.

Hell, I think airport searches of people for whom there is no probable cause is highly suspect on 4th Amendment grounds. I just don't see a reason for fuss here, though. That may change as more info comes to light but, so far as I can tell, there are no outrageous cases.

You sound just like Anjin San.

I was reading a post at The Daily Kos, as I do sometimes, and I noticed that they had gotten some facts wrong. They believe that Bush was spying on Domestic homes, while according to La Shawn Barber, This statement is false. The spying is in fact happe...

As Laura Rozen points out, getting a warrant is not exactly like jumping through a hoop of fire.

I used to have some respect for conservatives because I thought they were committed to some basic values. The kind of conservativism one saw in Scalia's Hamdi opinion, for instance.

Conservatives were supposed to be the kind of people who intuitively understood that "states of emergency," like Hitler relied upon in 1933, were classic excuses for tyranny.

No more, apparently. We have scarcely any conservatives left in the Republican Party. Just worshippers of executive power. Apparently you really can lose your soul and not even notice. Reagan and Goldwater are spinning in their graves, to say nothing of Burke.

From the article:

After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting.

It's December 16, 2005. So, they've delayed it since December 16, 2004. The election was November 2, six weeks prior. Presumably, the time it took to set up and conduct the meeting with the administration and to make the decision took quite some time. Presumably, too, it took a while to do the first round of investigations. So, at a minimum, it's quite likely the NYT was working on this story during the last days of the campaign.

That the NYT actually acceded to it--during a tight election campaign, no less--is indication that they took it seriously, though.

If the NYT sat on the story for a year, the elections were long over. I do my best not to fall into any sort of conspiracy theory, but the timing of this is almost too cute. Let's all welcome the return of the Gorelick Wall.

Blow it in your ear. You are no doubt the most negative individual in the entire of America. You zero in on anything to prove or uphold your perveted points. Like I said before, your problem is you are "just another left coast liberal" that loves your famous hollywood whores and pimps as well as the infamous misfits in SF.

It also appears that reasonably stringent safeguards were put into the process.

There's a "reasonably stringent safeguard" already in the process.

It's called a "warrant."