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A Guide to Domestic Surveillance

Jane Harman is confused. In her statement responding to yesterday’s court decision, she said (looking for a link, not up on her site yet):

Today, a federal court in Detroitstruck down as unconstitutional the President’s NSA Program.  Thedecision is significant in that it represents the first judicialdetermination that the President’s program violates the law and theConstitution.

The terrorists who are plotting against us would like nothing more thanto see us erode our Constitution.  We cannot hand them the victory theyseek.  For that reason, it is essential that all electronicsurveillance of Americans comply with the Foreign IntelligenceSurveillance Act and the Constitution.

By failing to create a legislative framework for this program, theAdministration and Congress have punted this matter to the courts. Nobody should be surprised that the ensuing litigation has createdinconsistent results in different courts and will only contribute tothe "fog of law" that has surrounded this program.

She refers to inconsistent results–which is misleading. You see, the two main cases on the warrantless wiretapping program have not yet shown inconsistent results. Harman appears to be conflating the underlying data collection program (which is probably illegal) with the eavesdropping program (which is definitely illegal).

Of course, Harman is not alone. Bloggers and reporters are also conflating the two programs (though to be fair, unlike Harman, the bloggers and reporters haven’t been briefed on these programs repeatedly). So, as a service to readers, I’m going to post my understanding of the different aspects of what Bush’s NSA is doing to Americans. Of course, this is my understanding–please provide corrections where you’ve got them.

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