John Yoo, Chief architect for the George W. Bush administration's more novel views on the constitution and presidentialauthority not found written down anywhere, is sharing his thoughts on the National Security Agency and revelations that the agency, via the Foreign Intelligence Surveillance Court, can collect information on whomever it wants, whenever it wants, regardless of whatever medium humans can communicate through.
Mr. Yoo is against putting the NSA in an "impossible position", because "we are placing these kinds of domestic law-enforcement standards on a foreign intelligence function. With domestic law enforcement, we want the Justice Department to monitor one identified target (identified because other evidence gives probable cause that he or she has already committed a crime) and to carefully minimize any surveillance so as not to intrude on privacy interests.
Once we impose those standards on the military and intelligence agencies, however, we are either guaranteeing failure or we must accept a certain level of error. If the military and intelligence agencies had to follow law-enforcement standards, their mission would fail because they would not give us any improvement over what the FBI could achieve anyway."
What Mr. Yoo fails to grasp is that the government, whether domestic law enforcement, the military or intelligence agencies, is covered by the same standard. Namely that the government does not have the right to search a person, his house or his "effects" without a warrant and that warrants may only be issued upon probable cause. The "reasonable suspicion" standard that allows police to detain a suspect temporarily doesn't cut the mustard here. There are no hidden, secret codicils that say the president gets to do whatever he wants under certain circumstances. And if the government, all in the name of protecting us, gets to pick and choose what authority it has and what what rights the people get to enjoy under specific circumstances, the whole system has failed.
It is a point I have made before and feel obligated to repeat: in our system, the people are the sovereign, the government is the servant. Executives, legislators and bureaucrats do not have the authority to decide what powers they have. This is kind of important.