Lawless Surveillance, Warrantless Rationales (a critique of Obama continuation of Bush policies)

Over at The American Constitution Society for Law and Policy website, Electronic Frontier Foundation Legal Director Cindy Cohn writes about the so-called Presidential Surveillance Program, the "still-shadowy set of programs that spy on Americans in America without any probable cause or warrant." The EFF, as regular BB readers know, has fought this program for several years now — in 2006, it filed suit against AT&T for providing the NSA with direct access to its database of communications records. Snip from Cohn's essay:

While the details are unknown, credible evidence indicates that billions of everyday communications of ordinary Americans are swept up by government computers and run through a process that includes both data-mining and review of content, to try to figure out whether any of us were involved in illegal or terrorist-related activity. That means that even the most personal and private of our electronic communications – between doctors and patients, between husbands and wives, or between children and parents – are subject to review by computer algorithms programmed by government bureaucrats or by the bureaucrats themselves.

It's a bizarre turn of events, these unwarranted general searches. Our country was founded on the rejection of "general warrants" – pieces of paper that gave the Executive (then the King) unchecked power to search colonial Americans without cause. The Fourth Amendment was adopted in part to stop these "hated writs" and to make sure that searches of the papers of Americans required a probable cause showing to a court. The warrantless surveillance program returns us to the policies of King George III only with a digital boost. It subjects a huge number our daily digital papers to threshold surveillance, then adding subsequent, more intrusive warrantless surveillance if faceless government computers and bureaucrats determine that our communications or communications patterns merit further scrutiny.

Both Yoo and Hayden draw from a similar bag of tricks to defend the surveillance programs, including claims that there was a "gap" between our domestic surveillance and our foreign intelligence surveillance.