Lawrence: I like Jim a lot, but I think he errs in his analysis of the FISA statute. He argues that terrorists are “foreign powers… as defined in section 1801, subsection (a)” of FISA. But as Orin Kerr explains, warrantless surveillance is permitted only on “foreign powers, as defined in section 1801(a)(1), (2), or (3)” — terrorist organizations aren’t defined as a foreign power until 1801(a)(4), (5), and (6). The surveillance may still be legal — I’m more inclined to think so than Kerr seems to be — but it isn’t that easy a call.
Also check out Tom Smith’s interesting response to Kerr, and Jeff Goldstein’s long round-up, both of which get at the fundamental question: Whether we view terrorism through a crime paradigm or a war paradigm.
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