Thanks for the great comments, Mary2002. Many of your questions have been brought up (and left unanswered) in our class. We had former SCOTUS O'Connor here the other day, and she said that we're living in an exciting time because of all these new and interesting separation of powers questions being raised by such an aggressive executive branch. I agree.

As for some of your questions, SWIFT was within the scope of the CIA's authority. Whether it was within the scope of the Swiss banks' authority to release that information is another question. As long as the CIA does not do any policing WITHIN the U.S. they can do just about anything they want in re: intelligence gathering abroad. The EU got in a fuss about it, but I think it pretty much died down.

As for something I learned last week, a warrant is not necessarily legally required to do a search. That was a shock to me. All that is required is probable cause. So if the Bushies REALLY wanted to they could try and make an argument they don't need a warrant because there is probable cause.

Other issues brought up is this strange privacy/libertarian bent the American people have (which I have too) about the government combing all of our online movements, but we're okay with Google or yahoo, or Amazon etc logging the movements. If you have no human being stepping in to look at results until there is a pattern of suspicious behavior (no clue how to define that), can we use this as probable cause. For instance, for instance, how is data mining different from a police officer standing on the side of a road and watching people go by...doing nothing...but when someone starts acting suspicious then going up to the person and following them around?

As for what is a "potential terrorist" it would have to be a foreigner with no rights under the Constitution. Any evidence seized about US citizens or resident aliens would be thrown out in our courts. However, foreigners are not protected...so I guess it would have to be a foreigner abroad planning on doing harm to the U.S.

Also, out of curiosity, do you (or anyone here for that matter) think that the CIA/FBI/NSA have a duty to protect Americans? If so, how do these orgs go about protecting Americans from people who plan their attacks using emails and disposable/satellite phones?

Also, I don't think there is any case law limiting the executive's right to spy on foreign to foreign communications because it is simply assumed the executive has the right. Also, the targets would not have standing. I mean, if the ACLU et al do not have standing to sue for these searches, why would a foreign individual or organization? My guess is the only time this program is going to be turned into the light is if some evidence is introduced at trial where the defense attorney realizes the only way the government could have obtained this information was through this warrantless wiretap. And only THEN will the defendant have standing to sue under the 4th Amendment.

Interesting stuff!

Posted at March 10, 2008 6:43 PM in response to Today's Must Read

We're studying this now in my National Security Law class. I'm curious about how everyone defines 'unreasonable search and seizure' in this day and age. Has anything changed in the minds of all of you, now that there are disposable cell phones, emails and all this?

One of the questions my prof asked us is, is it a "search" to have a COMPUTER PROGRAM (no humans involved) sift thru data? Every other country in the world does it.

Also, would anyone disagree that the NSA has a right to spy on all foreign to foreign communications? Would anyone object to the NSA intercepting an email sent from Kabul to Baghdad? Would it make anyone change their minds to know that about 90% of all international email and broadband telecommunications traffic travels thru the U.S.? Should we be making it MORE difficult for the NSA and CIA to spy on potential terrorists by making them tap outside of the US rather than using the US hubs (there are 2...one in VA and one in CA).

Just curious about what you all think about this. I read a few books that made me think twice about my preconceived prejudices about this program...under current law I think it may be illegal...but I'm not sure it should be with the right safeguards.

Posted at March 10, 2008 12:41 PM in response to Today's Must Read