I would have to say that I was radically unconcerned about McCain-Feingold, although you have done an excellent job JK in convincing me that it was bad law of the highest order. Well, that plus evidence that it simply doesn't do what it was supposed to do. I just always worry about rationalizing limits on liberty as a trade off for safety, being an adherent to Ben Franklin's views on that subject.

On the technology issue, you make some valid points, such as we have free encryption available, but I think we are giving up anonymity. In exchange for better communication we have made it easier for the government to snoop. We mentioned the colonial era, and yes the British could have folks listen to conversations, they could even put up checkpoints and open letters, but I don't see that as being quite as easy as tying into AT&T's feed. We get better communication, but less secure. A dissident in a totalitarian regime can post on the internet and get far wider exposure, but he cannot do so completely anonymously and thus, not freely. Like the gun analogy, laws protecting our rights are only as strong as the force the people can use to uphold them. We are guaranteed free speech but without the ability to be anonymous what power do we have to uphold that right?

I also believe the war powers of the Executive branch are being abused by declaring a near constant state of war. The Cold War lasted 50 years, unprecedented in our history, and yet President Reagan thoughtfully declared the War on Drugs before the Cold War was even over. Now we have the War on Terror, a war with no definable end. Keep in mind that many a dictator has declared war on his opposition and used those powers to strangle his country. How about the suspension of Habeus Corpus by Lincoln that I now hear so much about, yet no one quotes the famous Ex parte: Milligan case before the Supreme Court that officially ended it in 1866? Well, allow me:

"It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on return made to it the court decides whether the party applying is denied the right of proceeding any further with it."

The Supreme Court even in its 5-4 victory was attempting to make their decision as narrow as possible because of the precedent it would set. They carefully stated their opinion such that in a time of rebellion or invasion as the Constitution states, or even in time of war in general that martial law may be declared, but only during periods of time when the civil courts are closed due to that war, rebellion or invasion.

Secrecy is the other enemy of liberty. You cannot combat in a democratic arena what you don't know or can't prove exists. Look back through our history at the eras that had secret monitoring and wholesale suspension of liberties and think about how many of them you could defend today. The FBI monitoring of the civil rights movement or the anti-war movement, the Red Scare of communism and the congressional inquiries, the internment of the Japanese? How many of those actually had any effect whatsoever on our national security? There seems to be an assumption that large scale dragnets actually work in catching terrorists, yet proof of this is hard to come by and certainly not supported by history. Claiming that our victories must be kept secret to avoid tipping off our enemies may be valid, but it is also a very convenient way to not have to support your means with verifiable ends.

Of course, I didn't quote the Ex parte: Milligan case because I assumed everybody knew it, but you're right, we may have some newbies around here...

The War on Terror does indeed provide a pretext for usurpation of liberties. I cannot deny that but I have to look at the impingements so far and decide that I am comfortable. The supra-FISA wiretaps (three errors in two words, but you know what I mean) strike me as legitimate based on a few things I mentioned in mail

-- I am more comfortable with the �Carnivore� style eavesdropping, where huge quantities of information are algorithmically checked than individual eavesdropping. The legal question I never hear discussed is the suitability of the information for domestic prosecution. If I tell [foreign source] that I jaywalked yesterday, and jackbooted thugs from Lafayette Traffic Division kick down my door, we have a problem. If they really just care about and prosecute security concerns, I find it hard to get worked up.

I find that to be the difference in the historical parallels of Hoover wiretapping Dr. King (and Nixon's enemies list). These taps collected information for domestic prosecution.

The Japanese internment is a good example of a breach of rights, but that was funded by Congress and upheld in Korematsu v. United States, so you have a three branch failure. Likewise, history will show that many elements in the War n Terror were overkill. Airport security and disallowing the sale of the ports to Dubai come to mind already. But I don�t think we�ll look back and see the wiretaps in the same light.

As for your question of efficacy, the sidebar to the story includes an example success in the eavesdropping, and the near search of Moussaoui�s laptop will be fodder for counterfactuals for years to come.

Please allow me to pick on a few specifics:

1) Some of us are getting all worked up because this "widespread" illegal surveilance has affected maybe 1250 people per year for the last 4 years? And who knows what fraction of those aren't actually American citizens or legal residents.

2) A specific example of the egregiousness of this surveilance comes down to the concern that this law-abiding foreign businessman MIGHT be "monitored closely, denied entry, or face some other consternation?" I would hope that anyone who makes million-dollar deals with the world's leading terrorist state WILL be monitored closely.

3) This is just a gratuitous shot here, but of the three US government agencies the article laments are privvy to the watch list info, one of them, Homeland Security, would not even exist today save for the insistence of house and senate Democrats.

4) Perhaps this is just an example of sloppy excerpting, but what's the point being made about carloads of government agents tracking down a judge at his home to request emergency warrants? Isn't this what the "anonymity" crowd is demanding in the first place?

5) If only 4 out of 18,742 warrant requests were turned down over 25 years, why is it so all fired important to make sure that 1 out of 5000 gets turned down in the last 4 years? (I know, I know, if there's no oversight there will be more abuse. But how much abuse can there be in 5000 cases? With some luck, many of these targets are affiliated with domestic terrorist groups like ELF and ALF. GASP! I didn't actually stumble across the real fear here, did I?)

6) "Prison camps?...Door-to-door searches?...The Joint Resolution does not prohibit these far-fetched measures any more than it prohibits warrantless surveillance." Um, "far-fetched" measures don't fall under the umbrella of "necessary and appropriate." But the analogy is void: There is a material gulf between imprisonment or home invasion as compared to listening to what one says or writes.

7) "Very controversial action" by the current administration? Only in certain circles.

8) "are you saying that someone who is not comfortable with the president's approach and would like congressional investigation into the matter is simply being a partisan hack?" I think you know my answer to this one.

9) Regarding Silence's question about defending the 2nd Amendment but also being "so willing to give up their right to private communication:" Listen, if I had communications I wanted to remain secret from the government, the last thing I would rely upon to keep them that way is some sort of GOVERNMENT REGULATION! If the government wants to listen in on my phone calls that's fine with me as long as they don't, as JK quipped, send the jackbooted thugs for some minor offense like caring for a minor relative whose mother gave her life in a successful attempt to escape from a totalitarian regime. (Oh wait, that actually happened.) If they ever find actual evidence of terrorism or law breaking on my behalf then, as they say, I shouldn't have done the crime if I can't do the time.

10) "Are we silently giving away fundamental rights becuase we agree with the administration?" No on wiretaps. Yes on the failure to repeal the 16th amendment.

11) I think it's very important to understand the difference between public and private spaces. The government should never be permitted to enter private property to search without a warrant. Once you step outside though, it is lunacy to suggest that you be legally able to violate substantive laws merely because there was no reason to suspect you before you committed the violation.

12) This hangup over anonymity is puzzling. The reason we want a free society is precisely so that we don't HAVE to hide our identity! This is NOT a totalitarian regime: Witness hundreds of thousands of criminal aliens who took to the streets to flaunt their lawlessness last weekend. Where were the jack-booted jamokes with night sticks? It should have been a feeding frenzy, right?

In closing, we are all right to be vigilant for tyranny. Keep watching. This ain't it.

Hell, I'm about ready to vote in a Democrat president just to shut this bunch up for 4 years.

I can fink on him now that he's in the fold: LatteSipper is "Friend X!" Soylent Green is people!