Posner proposes a set of firewalls with criminal penalties and post intercept review in today's WSJ:

It is a mistake to think that the only way to prevent abuses of a surveillance program is by requiring warrants. Congress could enact a statute that would subject warrantless electronic surveillance to tight oversight and specific legal controls, as follows:

1. Oversight: The new statute would --

(a) Create a steering committee for national security electronic surveillance composed of the attorney general, the director of national intelligence, the secretary of homeland security (chairman), and a senior or retired federal judge or justice appointed by the chief justice of the United States. The committee would monitor all such surveillance to assure compliance with the Constitution and laws.

(b) Require the NSA to submit to the FISA court, every six months, a list of the names and other identifying information of all persons whose communications had been intercepted without a warrant in the previous six months, with a brief statement of why these individuals had been targeted. If the court concluded that an interception had been inappropriate, it would so report to the steering committee and the congressional intelligence committees.

2. Specific controls: The statute would --

(a) Authorize "national security electronic surveillance" outside FISA's existing framework, provided that Congress declared a national emergency and the president certified that such surveillance was necessary in the national interest. Warrants would continue to be required for all physical searches and for all electronic surveillance for which FISA's existing probable-cause requirement could be satisfied.

(b) Define "national security" narrowly, excluding "ecoterrorism," animal-rights terrorism, and other forms of political violence that, though criminal and deplorable, do not endanger the nation.

(c) Sunset after five years, or sooner if the declaration of national emergency was rescinded.

(d) Forbid any use of intercepted information for any purpose other than "national security" as defined in the statute (point b above). Thus the information could not be used as evidence or leads in a prosecution for ordinary crime. There would be heavy criminal penalties for violating this provision, to allay concern that "wild talk" picked up by electronic surveillance would lead to criminal investigations unrelated to national security.

(e) Require responsible officials to certify to the FISA court annually that there had been no violations of the statute during the preceding year. False certification would be punishable as perjury.

(f) Bar lawsuits challenging the legality of the NSA's current warrantless surveillance program. Such lawsuits would distract officials from their important duties, to no purpose given the new statute.

Destroying the negative data would be the only thing I would add to assure that Posner's robot searchers don't tell their tales to humans. I would subtract the barring of lawsuits. We need some catharsis. I would also subtract the Congressional declaration. Why should we expect the targets to give us any notice that they are on the war path?

Once upon a time, we had the idea that even government agents were just people, subject to the same laws as you and me. That was the meaning of a search warrant: it's what gave policemen legal immunity to perform a search which would otherwise make them criminals.

Now, we're talking about having Congress issue blank check warrants to entire agencies at once. Do we think that just because we don't call them warrants, we're exempt from the probable cause requirements of the Fourth Amendment? A rose by any other name would smell as sweet, and a legal paper that allows someone to perform felonies like trespassing or wiretapping with impunity is a warrant.

I'm really sick of laws made with "ignore the Consitution - what are the people going to do, revolt again?" attitudes. If we really think the fourth amendment needs to be repealed or revised, we've got a constitutional process that lets us repeal or revise it. At least changing the text of the Bill of Rights would make it possible to change back later; if we just redefine the text to be meaningless, we'll have stuck the fourth amendment down the same hole as the ninth and tenth forever.

this is a terrible idea. it would barely change how it operates now. there are already is "oversight", its just internal within the nsa. expanding it to other sections of the executive branch is marginally better, but still not a "check". there are also national emergency provisions in fisa, but i believe they last a maximum of 15 days (im not sure if they require a congressional declaration of emergency or not).

i believe that datamining must be going on. this is pure speculation, but nothing else really makes sense. according to gonzales, the reason they didnt go to the fisa court was not that fisa was slow, but that their own lawyers were slow, too much paper work i guess. if the nsa starts surveilling someone, then within 72 hours goes to the fisa court and requests a warrant, and is denied, what happens? presumably all that happens is they have to stop their surveillance, and no punishments are given out. if that is the case, i cannot think of a good reason to ignore fisa other than datamining. if anyone can think of any other reason (perhaps merely arrogance?) let me know.

Eco-terrorism and animal-rights terrorism "don't endanger the nation"? Where does this come from? Couldn't you say the same about, say, anti-abortion violence? Seems pretty ridiculous to exclude a kind of violence merely because of the politics behind it.

That was the meaning of a search warrant: it's what gave policemen legal immunity to perform a search which would otherwise make them criminals.

You're talking about police and criminals, while everyone else is talking about war and terrorists.

That must be the confusion right there: we're not trying to arrest these birds, we're trying to kill them.

somehow the idea of a war against our own citizenry doesnt put me at ease.

I too find the "ecoterrorism" exception to be stupid. As if the bad guys won't find ways to make common cause, or fund front groups, or use the exception to fclaim improper use of such rules. Why do so many talk-head lawyer/judges seem to live in a fantasy world where everything is neat and clearcut?

somehow the idea of a war against our own citizenry doesnt put me at ease.

But.. but.. we've accused them of being terrorists! We don't think we have enough evidence to get a search warrant, much less a conviction in court, but surely the accusation alone is enough to strip away the Bill of Rights!

(b) Define "national security" narrowly, excluding "ecoterrorism," animal-rights terrorism, and other forms of political violence that, though criminal and deplorable, do not endanger the nation.

At least they got something right.

Animals have just as much right to exist as you or I and there is no justification for inflicting the misery that factory farming and other practices inflict on many of the non-human inhabitants of this planet. Long live the heros who risk their lives and freedom defending animals and the planet against the greed, malevolence, and destructive stupidity of humanity. ANIMALS DO NOT DESERVE TO LIVE THEIR LIVES IN MISERY!!