Wednesday, January 04, 2006

The Volokh Conspiracy - -

The Volokh Conspiracy - -
At this link Orin Kerr posted a discussion of the NSA wire tapping program and the new book attacking it.
This program does raise some interesting issues. Revealing the program was probably illegal somewhere along the line. And a public discussion of the true details of the program would probably be counterproductive to the current war against the Islamofacist terrorists.
From the little information available the NSA program may not violate FISA, a law governing national security wiretaps, for two reasons: First, the NSA monitoring program probably scans thousands of messages for certain words or numbers, It is therefore not a wire tap of a "particular" person as is forbidden by FISA. Second, the NSA program may be under the aegis of the Presidents war powers. As such FISA may either not apply or be unconstitutional as applied.
Since the NSA data could not be used in a court of law any specific wiretap to be used for legal prosecution would have to be done with a warrant under FISA. The intrusion into the affairs of individual Americans would be insignificant for the most part. And, during wartime there is no reasonable expectation of privacy for communications with enemy agents. As a result of these three facts, there is little chance of a genuine case and controversy arising under the fourth amendment to the constitution.
During wartime past American Presidents have taken far greater liberties with civil liberties than anything currently rumored.
While I am a believer in the right to be free from unreasonable searches and seizures I do not believe the current rumored NSA program is unreasonable. If anyone is prosecuted with its fruits, let the evidence from the unwarranted tap be excluded. But let the monitoring continue for the safety of the people of the Republic!

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