the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don’t know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don’t know enough of the facts to know if the program violates the Fourth Amendment.
Professor Kerr has identified the most interesting feature of the NSA flap. The December 16, 2005 New York Times leaked NSA story accused the Bush administration of “monitoring,” a term subsequently rhetorically upgraded to “spying,” and ultimately to “eavesdropping,” on international phone calls and email messages “within the United States” without warrants.
The Bush Administration’s accusers knew that they were taking a very serious step by divulging the existence of one or more top secret National Security programs, and they not surprisingly chose merely to apply partisan and inflammatory characterizations without ever specifically describing what it was that they were pointing to with feigned outrage.
Since all this is secret, no one outside certain intelligence agencies and the upper reaches of the US Government really knows who is doing what, when, or to whom. It is really as if all it required was for Messrs. Risen and Lichtblau to write a story saying “the Bush Administration is secretly violating the law,” some unidentified persons said “by doing bad things,” and the left faithfully falls into zombified lockstep, and begins shouting cries of pain and outrage in chorus.
A key problem is no one has ever been identified anyone who has ever experienced a known wrong, or a perceived consequence of any kind, from whatever it is that NSA might, or might not, be doing.
Can the Constitution really be violated, or the law be broken, by persons unknown secretly peforming unknown acts devoid of discernible effect?
The left obviously thinks that George W. Bush is just intrinsically unconstitutional, and that he breaks the law just by being in office, and their grasp of so much of the MSM allows them to create an echo-chamber alternative reality in which the liberal articles of faith -which everybody knows- seem very real, however tenuous their relationship to mere diurnal reality.