Reason: Are You Being Searched?

Julian Sanchez has a good (if somewhat brief) piece on the NSA eavesdropping program over at Reason Magazine.

Excerpt:

The defenses offered thus far of warrantless wiretaps on U.S.-to-foreign communications of persons with "links" to al-Qaeda have been, if not quite tortured, then at least subject to coercive tactics.

Consider, for instance, the argument that Congress' authorization of military force to pursue terrorists in the wake of 9/11 gave President Bush the power to authorize such surveillance—even though Attorney General Alberto Gonzales has said the administration declined to seek such authority explicitly for fear of being turned down.

The argument turns on a strained analogy to a 2004 Supreme Court ruling holding that the authorization of force included the authority to detain captured combatants, a fairly obvious natural concomitant of war, even though it did not explicitly mention "detention." The alternative would be to conclude, ludicrously, that Congress intended a "take no prisoners" War on Terror, in which enemies must either be released or shot on the spot. But administration apologists—take the hairpin curve in this logic slowly or you may crash—have parsed the ruling as entailing that Congress therefore endorsed anything short of putting a bullet in a suspected terrorist's brainpan.

Reason: Are You Being Searched?: How NSA's mass eavesdropping could fly under constitutional radar