Watch the Donut, not the Hole

The underappreciated legal implications of warrantless wiretaps are beginning to come out:

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.
...
The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush's circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable. Other officials said the disclosures might shift the terms of public debate, altering perceptions about the balance between
privacy lost and security gained.

Forget the numbers of people who have been subjected to this investigation for a moment (as high as 5000 citizens, per this article). Focus on the question of law.

Any surveillance conducted without warrant or legal authority (and the bootstrapping kind Alberto Gonzalez imagines is not "legal authority")is useless in a court of law. And, as the Supreme Court has made clear in the Hamdi decision, American citizens are entitled to all the due process the Constitution allows. [Correction: Hamdi makes it clear that due process and other legal requirements would apply even to non-citizens, if they are charged with a crime within U.S. court jurisdiction. So there is no legal justification for the NSA program, whatever the conditions of it are]. Which includes the protections of the 4th Amendment. Which means any case prosecuted against a U.S. citizen based on data produced by the NSA program (assuming, arguendo, the program as presented by Gonzalez, Bush, et al., is an accurate picture of the scope of the wiretapping), will not be allowed in to court. And any evidence produced from that tainted evidence won't be allowed in court.

The focus of the WaPo article is the "data-mining" aspects of this program; which is certainly frightening, and something to be worried about. The questions of what NSA was up to need to be probed deeply, and not dismissed with a "but the President was acting on good faith" argument. A child with a loaded gun is acting on good faith, too, but that's only because he's too ignorant to understand the consequences of playing with a loaded gun. I'm not willing to give the President a pass on the basis he's no more competent or responsible than a three-year old.

But the legal question is perfectly plain, and even Alberto Gonzalez can't argue it away: if this evidence would not be admissable in a court of law (and nothing in his legal arguments indicates he has a lever strong enough to overturn decades of 4th Amendment jurisprudence), then what is the legal purpose of this program? The answer is: it's data mining, whether it affected 5000 people, or only 5 people. Which means it has no legal purpose, and no legal justification. And that conclusion can be reached solely on what the Administration has admitted it is doing.

The numbers affected don't matter. It's the purpose of the program that matters. The argument that the President has the power to conduct this surveillance merely to protect the nation from another attack:

Supporters speaking unofficially said the program is designed to warn of unexpected threats, and they argued that success cannot be measured by the number of suspects it confirms. Even unwitting Americans, they said, can take part in communications -- arranging a car rental, for example, without knowing its purpose -- that supply "indications and warnings" of an attack. Contributors to the technology said it is a triumph for artificial intelligence if a fraction of 1 percent of the computer-flagged conversations guide human analysts to meaningful leads.

still leads to only one conclusion: President Bush has assumed the powers of a monarch, an absolute ruler. (The quoted argument, of course, is truly frightening; it is the argument of a police state, not a democratic republic.) He arrogates to himself the position of both originator of law, interpreter of laws, and enforcer of laws. Whether this program covers 2 Americans, or 20,000, is irrelevant. "Is it legal?," is the only question.

And clearly, it is not.

It would not lead to convictions in court, and it would disrupt terrorist actions only by disrupting the lives of ordinary citizens in the course and conduct of their ordinary lives.

There are several issues raised by this article, most of which Mr. Gonzalez would merely stonewall with the declaration that he cannot speak about "operations." Sticking solely to what the Administration itself will acknowledge, however, there is enough to declare this program illegal and unconstitutional, and a danger to the republic.

Now we'll see if any Democrats will do that.