Over at Balkinization, Marty Lederman calls attention to the broad sweep of the NSA's warrantless eavesdropping on Americans' international phone calls and e-mail messages. At his press briefing on Monday, Attorney General Alberto Gonzales said the NSA listens in only when there's "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." When such a communication involves a U.S. citizen, he said, "it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda." He also said these are "communications where we believe one of the parties is affiliated with al Qaeda or part of an organization or group that is supportive of al Qaeda." (Emphasis added.)
Thus, Lederman argues, even if you buy the president's claim that Congress' post-9/11 Authorization for the Use of Military Force implicitly authorized "signals intelligence," including warrantless surveillance of communications involving Americans in the U.S., the NSA program goes beyond the targets mentioned in the resolution–i.e., "nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Lederman concludes that "many of the communications in question–say, a phone call from me to someone who is not part of Al Qaeda, or working with Al Qaeda, but who is 'part of' an organization 'supportive of' Al Qaeda–are between two people, neither of whom is covered under the terms of the AUMF." He suggests this helps answer the question of why the Bush administration decided not to seek warrants, even retroactively, from the Foreign Intelligence Surveillance Court, which would have wanted at least an assertion that one of the parties to a monitored communication was an agent of Al Qaeda (or another terrorist group).
[via Protein Wisdom]