I think Noah Shachtman is onto something. Wonder if some new data mining or other technology meant that the way they got "probable cause" was through what the courts would deem illegal search and seizure? Is this about some technological application that has an implicit policy change the administration never declared? So you start by mining every single communication to and from Afghanistan and you mine some significant patterns and work backwards? But why even at that point -- when let's say they had a list of targeted phone numbers or specific individuals in the US they then wanted to surveil -- would they not then go to the FISA court, which surely would be sympathetic to their security argument, and one would then have, with a court-approved wiretap, potentially legally admissable evidence? Why stick with a program that could never be used in court? I don't think we can understand this warrantless NSA spying on Americans story without its connection to the whole secret extra legal other decisions the Bush administration has made mostly in secret - the torture, the extraordinary renditions, Gitmo, secret prisons, declaring unilaterally US citizens like Padilla and Hamdi enemy combatants, instantly denied the rights of US citizens, because clearly, the Bush administration never meant to try any of the people picked up by this program in a court of law.

And for such vast, extra legal search and seizure of captured communications, why do they seem to have so very little to show for it? And why did they not consider creating some oversight mechanism, that would give the program some pretense to legitimacy? Why was this policy change all done in secret, with those authorizing the program the same ones who allegedly "oversaw" it, answerable to nobody, a perfect circle absolutely ripe for abuse?

And I think there's a whole new set of hurdles to Alito's nomination that just appeared, that may make even Republican Senators resist putting someone on the Supreme Court who would deem such secret executive powers at the cost of those of Congress. More here about the new hurdles Alito faces.

Posted by Laura at December 19, 2005 08:47 AM