If we don't believe in freedom of expression for people we despise, we don't believe in it at all.

Allow me to start with a January ’06 statement from the White House:

The NSA's terrorist surveillance program is targeted at al Qaeda communications coming into or going out of the United States. It is a limited, hot pursuit effort by our intelligence community to detect and prevent attacks.

Now, who could be upset by such a program? (Besides al Qaeda, of course.) Surely every reasonable American wants the government to surveil terrorist organizations. Surely every reasonable American supports hot pursuit of terrorists, and the prevention of terror attacks. In fact, I have never seen it argued otherwise. So why is this issue contentious?

Well, there are some who feel that the Fourth Amendment requires a court to issue a warrant for such a program. And that is where reasonable people separate into opposing camps. There are some who are certain that this is the first step down a slippery slope. These people generally recognize that not every warrantless search is unwarranted. Nor are they necessarily a violation of the Fourth Amendment. But trying to equate, for example, most of the examples given in this oft-cited Andrew McCarthy article to the program in question is not helpful – it simply does not address the substantive concerns that exist, even if it makes for good soundbite material.

Along the same lines, it must be recognized that those who support the NSA program is necessary as-is are not actually seeking to raise the presidency to a dictatorial level. They simply recognize that valuable information is passed between terrorists through channels that we have the power to monitor, and they want the NSA and other government agencies to have the freedom to act for the safety of Americans. To accuse these people of disregarding the rights of the individual is to neglect the depth of thought that goes into weighing personal freedoms against national security.

I think the most overlooked point on this issue is that no reasonable person is arguing that the government should not be able to conduct this program with warrants. At the risk of oversimplifying the situation, it seems to me that whether the warrants are technically necessary or not, obtaining them would be very easy, and would allay the concerns of opponents.

Allow me to highlight a few of my favorite arguments regarding the issuance of a warrant:

Kip, Esquire responds to several media outlets:

OpinionJournal, a/k/a Wall Street Journal:In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent.

--But how do we know they're our enemies? Do we have, um, probable cause to think so? Or even just the less onerous standard of "reasonable suspicion"? Or, um, anything specific enough to get a FISA warrant?

New York Sun:Yesterday's ruling follows the disclosure in December of an NSA program to listen in on calls between suspected terrorists abroad and those on American soil who might be communicating with them.

--But why do we suspect that they're terrorists? Because we have, um, probable cause or reasonable grounds to suspect it? Enough to get a FISA warrant?

NRO:The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program in which NSA intercepts foreign-U.S. terrorist communications.

--But how do we know that they're terrorists? Because we have, um, probable cause to know it? Enough to get a FISA warrant?

USA Today:The NSA program applies only to international calls, and only those intercepted while tracking known or suspected al-Qaeda operatives.

--But how do we know or suspect that they are al-Qaeda operatives? Because we have, um, probable cause? Enough to get a FISA warrant?

It's not the wiretapping. It's the warrantless, stupid!

Similar thoughts from defcon:blog.

Jib Halyard (my good friend and co-blogger at Atlas Blogged) expressed the civil libertarian viewpoint when he asked:

Where does this presidential power end? Warrantless wiretapping is the legal equivalent of unlawful search and seizure, which is clearly prohibited by the 4th Amendment. If the administration’s argument affirms that, because we’re at war, it can contravene the 4th Amendment, then why doesn’t that same argument have the capacity to circumvent the entire Bill of Rights?

Obviously, some see this as very unreasonable in the face of the threat to national security that is posed by IslamoFascistsany terroristsany criminals our enemies. But it doesn’t have to be a slippery slope – a point Jib argues to Xrlq in the comments section of that post:

I want our law enforcement to be able to practice surveillance using the best technology available. The objection I have is to warrantless wiretaps, not to the practice of wiretapping altogether. All I desire is for our system of checks and balances between the branches of government to remain intact while doing so.

As I'm sure you know, FISA was enacted to address this very circumstance. Instead, the executive chose to ignore this law, claiming that (i) it is too cumbersome for their needs, and (ii) they have the authority to, based on its Article II powers.

I'm challenging these two claims:

First, if FISA is out date for whatever reason (it's insufficient, anachronistic, too cumbersome in a modern environment, simply can't apply to our newest prevention technologies, whatever), then the executive should go to the legislative and say so, and ask for what they do need. Congress was united in supporting what was needed to protect our country - at least when this program started - and would have done what was necessary to update the FISA system; but, it's beyond the executive's purview to simply ignore the existing law.

Second, as I asked in my article, if the administration's interpretation of the executive's war powers is correct, then what does stop the executive from expanding their powers further, infringing on our other civil rights as outlined in the Constitution? From my perspective, this is the true scary part of the equation.

Thomas Eddlam at Lew Rockwell:

I’ve got no problem with tapping the calls of people who are al Qaeda, and Congress authorized the President to do this under the 1978 Foreign Intelligence Surveillance Act (FISA). All that Bush has to do is follow the same Constitution he swore an oath to "preserve, protect and defend" by seeking a warrant. There’s even an emergency provision in FISA that lets the President tap a phone call before getting a warrant, which is similar to the common law doctrine of "hot pursuit" with regard to warrants. If all the President has to do is get a warrant within 72 hours after conducting the phone tap, it doesn’t slow down the NSA one bit to get the warrant.

So, other than the argument that it is not necessary (which may or may not be true), why shouldn’t the NSA go ahead and get the warrants for these searches? Are we worried about a slippery slope that would greatly restrict the federal government? If so, is that a concern held by conservatives, or by liberals?