Thanks for putting forward an analysis of the "wiretapping" issue that carefully considers some practical situations and changed circumstances per communication technology. All too often reporters and columnists, especially in the NYT and WP, refer to the whole surveillance program as warrant less wiretapping implying that everything is clearly illegal, whereas it is abundantly clear there's a lot going on that is not wiretapping and shouldn't need a warrant. Still I sense some of you on the thin edge of screeching "Its illegal", rather than providing analysis. But I wanted to take a shot at why this tends to leave "real people" cold. IMO what you're doing is a legal analysis of how these programs comport with the jurisprudence and legislation of the past (FISA) and also more recent legislation. This analysis occurs in a relative vacuum.' Its my understanding that during WWII our security agencies took substantial latitude with privacy protections. If so, were these legal then given wartime conditions? Or was there legislation, since rescinded, that legalized these actions? Or would subsequent jurisprudence made these actions questionable? IMO rights cannot be absolute but must be the result of a weighing of threat vs the value of privacy. It would seem obvious that in wartime this balance shifts. Obviously this isn't WWII. But its also not the Cold War. In fact its easy to argue, from a homeland security point of view this situation is more dire than either WWII or the Cold War. Our opponents are indelibly organized to try to kill us in large numbers!!!! They already have. Then we had other means, more appropriate to the circumstances (armies, planes) to protect us. Now surveillance has gone from a useful axillary activity to a primary weapon. So the balance of threat vs. privacy rationally must shift against privacy. And to do so requires action, some of it secret, necessarily on the part of the executive. Such considerations seemingly play no part in your analysis, yet they seem to me to be critical. Obviously in such circumstances we end up relying on the discretion of the executive more than we're used to. Yes there is a greater potential for abuse (but a question of degree, not an absolute: there is abuse now, the Dukies for example). But there is a check still. If discretion is abused in a functional sense that hurts innocent people there will be victims with a cause of action. So far the surveillance programs seem to be victim less "crimes". Or maybe the administration is in fact being reasonable with the program.

Cause of action? Har dee har har. To pursue a cause of action, one needs discovery. Discovery has proven to be unavailable in cases where the gov't insists national security is involved. And that assumes that the "harm" to innocent parties is sufficiently minor so that the harmed party is out of prison, mentally unimpaired and has effective access to the legal system. Also, to the extent that the harm is that the gov't has intruded on one's privacy and acted improperly with personal information, how likely is it that one is going to argue about that information in a public forum? See many people suing for extortion and blackmail in the courts? Nope.

I would also point out that it's shortsighted and legally implausible to worry about only "innocent" people. The concept overall fails if one can say, "If it's foul, it's fair"-- in other words, justifying illegal surveillance if it happens to turn up wrongdoing and limiting actions in cases where the aggrieved party is innocent. Such a paradigm runs counter to the doctrines underlying "fruit of poisonous tree" cases. It would also lead to an environment where the gov't has an independent, selfish motivation to make a case in order to justify its surveillance.

If you think that's no danger, just ask a Black Panther. Oh, that's right. Almost all of them ended up dead or with life prison sentences.

Just so you know, I find your unwarranted contemptuous tone offensive.

To your points. I am not suggesting that action taken by innocents (or guilties) harmed by abuse of executive powers expanded because of security reasons is adequate protection for those individuals. Rather it acts as an ultimate check on the system of executive power. (as one of several.) Clear abuse foisted on innocents with a cause of action will motivate the courts and congress. Discovery follows a cause of action. As some courts have found, the sort of abstract rights fishing that typifies cases brought to date, fail for this reason, not because the court in principle denies discovery, but rather that there is no cause of action.

Consider the Dukie situation. The full panoply of rights enforced bu a cordon of expensive lawyers did not protect the Dukies from harm imposed by an abusive prosecutor. But that harm provided a cause of action which led to discovery of the abuse and the punishment of the abuser.

Further, the guiltys in these instances are specifically people who we want to stop from killing thousands. If executive action is in fact focused correctly on such people, I don't believe it is remotely acceptable that they receive the same protections and deference as say a single crime wife murderer. If the law does does not allow different treatment of such people, then the law becomes a suicide pact. But I don't think we're there. The law, notwithstanding you argument does allow different treatment. The question at hand is how far to go.

Just so you know, I don't give a flying monkey shit what you find offensive, bunghole. I find your stupidity offensive. We're just going to have to learn to live with each other.

You are really a clever boy and its clear you have the gift of persuasion. I'm utterly convinced you're right and retract everything I've said. Please keep this up so you can educate the world.

Actually, this war seems less needful of suspension of the bill of rights then the Cold War and WWII. Those wars presented existential threats-- in WWII mass armies, allies who capitulated under invasion, nightly bombings on our allieds' cities, genocide and in the Cold War we faced an industrialized enemy with THOUSANDs of nuclear weapons.

Right now we're dealing with a raggedy bunch of theocrats localized in a Pakistani backwater who got incredibly lucky once. The London bombings are mostly copy-cat crimes, not organized out of Peshawar. These guys don't threaten our existence. We should pursue them, but we needn't mobilize our civilization to the fight and law down our civil protections.

Notwithstanding my disagreement, I don't think you're a bunghole and, to the contrary, I think you've addressed the topic thoughfully.

Thanks for a thoughtful and amiable response.

Of course you're right that the Cold War danger in the sense of the nuclear threat was much greater than we face today and therefore would have justified by my logic a greater reduction of rights in principle. However, one must still come to grips with the efficacy of actions to be undertaken. The Soviets, though with the capability to do so, were judged correctly to be highly unlikely to attack us with surreptitious bombings or plane hijackings. Thus providing greater latitude to security authorities to preempt such attacks would yield no benefit. The current threat on the other hand is very susceptible to such action. Thus we have more reason to grant greater latitude.

In WWII Roosevelt put West Coast Japanese ethnics in camps. This was cruel and certainly constitutes a greater violation of rights than anything under consideration per surveillance now. One can argue about the efficacy of this action, but a similar action would clearly have less value now (assuming it ever did) because we don't have a clear ethnicity to categorize the risk. We on the other hand need improved surveillance precisely so we can determine who the bad actors are.