Excellent analysis by federal circuit judge Richard A. Posner. One excerpt
So the problem with fisa is that the surveillance it authorizes is unusable to discover who is a terrorist, as distinct from eavesdropping on known terrorists–yet the former is the more urgent task. Even to conduct fisa-compliant surveillance of non-U.S. persons, you have to know beforehand whether they are agents of a terrorist group, when what you really want to know is who those agents are.
Fisa’s limitations are borrowed from law enforcement. When crimes are committed, there are usually suspects, and electronic surveillance can be used to nail them. In counterterrorist intelligence, you don’t know whom to suspect–you need surveillance to find out. The recent leaks from within the FBI, expressing skepticism about the NSA program, reflect the FBI’s continuing inability to internalize intelligence values. Criminal investigations are narrowly focused and usually fruitful. Intelligence is a search for the needle in the haystack. FBI agents don’t like being asked to chase down clues gleaned from the NSA’s interceptions, because 99 out of 100 (maybe even a higher percentage) turn out to lead nowhere. The agents think there are better uses of their time. Maybe so. But maybe we simply don’t have enough intelligence officers working on domestic threats.
I have no way of knowing how successful the NSA program has been or will be, though, in general, intelligence successes are underreported, while intelligence failures are fully reported. What seems clear is that fisa does not provide an adequate framework for counterterrorist intelligence. The statute was enacted in 1978, when apocalyptic terrorists scrambling to obtain weapons of mass destruction were not on the horizon. From a national security standpoint, the statute might as well have been enacted in 1878 to regulate the interception of telegrams. In the words of General Michael Hayden, director of NSA on September 11 and now the principal deputy director of national intelligence, the NSA program is designed to “detect and prevent,” whereas “fisa was built for long-term coverage against known agents of an enemy power.”
<more> [$$] I haven’t found a way to link that doesn’t require a TNR subscription.
So now we are going to arrest people before they commit a crime? Everyone in their life has committed a crime - u-turn, parking ticket etc does that mean we should all be monitored.
Its been clearly shown time and time again that laws passed for one purpose are eventually stretched to attack political enemies and the minority view.