Tyler Cowen Alex Tabarrok considers some economic explanations for the recent inversion of the traditional dominance of movies over television as “elite entertainment,” primarily the rise of pay-TV and the growing importance of the international market for movies. (Explosions don’t need to be translated, after all.) That’s surely part of it, but I’d be more inclined to emphasize the effect of DVR and the rapid collection of TV seasons on DVD. It’s much easier to tell a dense, multilayered story with many characters that unfolds over the course of a full season when you know viewers aren’t at any risk of missing an episode and getting lost, and in particular when they can go back and refresh their memories rather than having to keep the whole story cached in memory in the week between episodes.

On the movie side, though, I don’t think it’s that movies as such are in decline as elite entertainment, but that technology has effectively forced new highbrow movies to compete with the cinema’s ample back catalog. Twenty years ago, if you wanted to have a “home entertainment center” that could serve as a decent substitute for the theatrical experience, you pretty much had to be willing to drop ten grand and devote a room of your house to it. Now a 50″ high-definition TV can be had for a few hundred dollars, and will fit against the wall of an apartment living room. It’s not a perfect substitute: If you want to get a big group of people together and make a social event of seeing a big flashy action movie with the latest special effects, the theater is still probably your best bet. But if you want to watch The Seventh Seal or Citizen Kane with a couple other people, it’s a viable alternative in a way that the smaller standard-def TV you’d find in an equivalent middle class home circa 1990 just wasn’t. Moreover, for the cost of a $10 monthly Netflix subscription, you’ve got an ample and growing library of both classic and recent movies available on demand. Once those costs are sunk, and once the audio-visual quality is high enough, a lot of people will actively prefer to watch a quieter or more thoughtful movie at home with a glass of wine.

Here, again, if you’re in the mood for (say) a big flashy sci-fi action movie, improvements in filmmaking technology mean that the latest theatrical release is going to have enough of an advantage to be competitive with the back catalog. Whatever else you might say about it, Inception is visually a lot more impressive than most old action sci-fi movies. (There are exceptions—Blade Runner springs to mind—but not a ton.) But if you’re looking for a smart, artistically shot film with smart dialogue? Unless you’re a truly voracious film buff, there are probably a couple hundred Criterion Collection films you haven’t seen that are superior on those dimensions to anything made this year. Time and tech do a lot more at the margin to improve flicks than films.

I haven’t got any actual data to back this up, mind you. But my guess is that a lot of the audience for highbrow film isn’t necessarily watching less of them—though insofar as the quality of TV has improved, there’s probably some substitution effect—but that they’re probably watching more older movies at home. In the short term, with theatrical box office still viewed as a leading metric of a film’s success, that could make it harder for those types of movies to get greenlit. In the long run, one hopes, the same technological trends will make it easier to finance and distribute films at lower cost, and without necessarily going through the studio system.

This has always sort of bugged me:

You know I work all day to get you money to buy you things
And it’s worth it just to hear you say you’re going to give me everything

So, first, rhyming “things’ with “thing” is kinda cheating, but let that pass. What’s that “just” in the second line all about? She’s going to give you everything?  Well, that’s not a “just,” is it? It’s everything! Just sounds weird.  Anyway.

The Metropolitan Opera has put together a ton of material on the website for their new (and, from the looks of it, absolutely gorgeous) production of Wagner’s Ring Cycle. Meanwhile, I finally got around to checking out the Radiolab episode “The Ring and I“—which as I’d expect from one of my favorite radio programs, is as good an intro to the Cycle as you’re likely to get in the span of an hour.

Ned Resnikoff ponders the question. It seems to me that the answer is clearly “no,” but for a reason Ned doesn’t actually offer: It would require a good deal less than omnipotence to make a human perceptual system experience any demonstration of omnipotence you might care to suggest. So we might imagine God zipping you back to the dawn of creation so you can watch him summon all the galaxies into existence, then mold the earth and breathe life into the first humans, and so on. The trouble is that if you’re aiming for parsimony, the simpler explanation will almost certainly be that you’ve encountered a being capable of simulating all these experiences to your primate nervous system. That is, of course, a hell of a trick—a being who can do that is certainly pretty potent!—but still pretty far short of complete mastery over all space, time, and matter. Even assuming that problem away, the tests would be limited to those feats observable by (and comprehensible to) humans. Maybe God’s almost omnipotent little brother can do just about anything, but could never get the hang of performing a 12th-dimensional loop-de-loop with whoozits sprinkles, which isn’t even on our mental menu of stuff-a-really-awesome-entity-could-do.

Ned ends with this thought:

So perhaps the only way to directly experience the existence of an omnipotent God is to be that God.

Actually, this strikes me as posing some parallel epistemic problems—as illustrated, by the by, in a delightful bit of short fiction from Robert Nozick.  Suppose you’re God: How can you be sure you’re omnipotent? Perhaps you can accomplish anything you can imagine in your own corner of reality—a lucid dreamer can say that much—but there’s some greater reality you’re not even aware of in which, like the dreamer wakened, you’d have no such power. Or maybe even within reality as you know it, there are gaps in your power you aren’t aware of because you can’t even think of the relevant tests. The obvious response is that you’d know all these things because you’re omniscient—but of course, the same problem arises. How do you know you’re really omniscient? At most, there might not be any questions you’re aware of being unable to answer—but that’s hardly the same thing. The subjective feeling of omniscience might in fact be a symptom of a profound ignorance—being unaware even of the existence of those domains of knowledge you lack. How, for that matter, do you know the answers are right? This is a particularly thorny problem when combined with omnipotence: If reality is whatever you decide it is, does it even make sense to speak of true or false beliefs? Beliefs, after all, are supposed to be true or false of an independent reality.

I am not, of course, a believer, but if I were, I’d prefer to imagine a deity occasionally plagued by these thoughts—an agnostic God who sometimes doubts Himself.

Mike Masnick writes that a surprising number of online music vendors are choosing to settle rather than fight lawsuits from a company called Sharing Sound which managed to secure a ridiculous patent on, essentially, the very idea of selling music online. They are, one assumes, settling because Sharing Sound is asking less than what it would cost in legal fees to fight the patent, even if a victory were all but assured.

It strikes me that we can think of the invalidation of bad patents as a public good: If someone does fight back and get the patent declared bogus, that’s game over for Sharing Sound—and good news for all their other potential victims, who are now spared the threat of litigation (or the cost of settling) without themselves having to pony up for legal fees. For just this reason, of course, Sharing Sound is probably careful to limit their settlement demands to less than the cost of beating them in court. The patent is sufficiently plainly bogus that if anyone were expected to fight, the lawsuit would probably not have been worth filing in the first place, since it would just result in a costly defeat.

It seems entirely possible that the combined cost of all those settlements is actually quite a bit more than the cost of mounting one successful counterattack in court. But, of course, if anyone proposed that the target companies pool their resources to mount a unified defense, each would have an incentive to free ride. You could have some kind of insurance-like setup where a consortium of tech firms keep a legal team on retainer to defend any members targeted for a suit over a patent determined by some independent panel to be sufficiently frivolous, where  companies that don’t join make more attractive targets for patent trolls, which reduces the incentive to free-ride.  If the companies together can credibly commit to fight such suits, then assuming sufficient transparency, the existence of the mechanism should create enough of a deterrent threat that they’d seldom actually have to. But there are plenty of reasons such a system might be unworkably complex and have its own incentive problems.

Anyway, I do think this goes to show why more rigorous up-front scrutiny of patents is so important. Once a bad one is granted, a clever patent troll will structure their rent extraction to avoid triggering any after-the-fact legal scrutiny, which means once they’re granted, even the most manifestly bogus ones may exert substantial economic drag without ever actually being challenged.

For those of you who aren’t reading Cato at Liberty (and why not??), I’ve got a longish post over there that looks at a couple of recent law review articles questioning whether it really makes sense to think about the Fourth Amendment primarily in terms of “privacy.” I find myself pretty sympathetic to the argument that looking at it exclusively through this lens misses a lot of the important interests the amendment ought to protect, and that we should see it more generally as a mechanism for regulating government information gathering, with the understanding that some of the problems with that information gathering are not most usefully analyzed under the rubric of “privacy invasions.”

Apropos of the Very! Exciting! News! that Dismemberment Plan—one of my all time favorite bands—is reuniting for a winter tour, here’s “The City” off the classic Emergency & I. (No, seriously, if you don’t have this album, go download it now.) The city has, indeed, been dead since they’ve been gone:

Yglesias wonders why “intellectual honesty” is any different from plain-old honesty. Noah Millman gets at the difference as I’d understood it:

“Intellectually honest” means you make arguments you think are true, as opposed to making the arguments you are “supposed” to make and/or avoiding making arguments that you think are true that you aren’t “supposed” to make.

Advocates, by contrast, make the best arguments they can think of for the position that they are obliged to take by their position. They are still supposed to be honest – they are not supposed to actually lie. But they are not expected to follow their own consciences with respect to the arguments they make or the positions they advance.

This sounds right. Back when I debated for NYU, I was always honest: I would not knowingly assert factual falsehoods. But I was often intellectually dishonest, because my job in those particular contests was not to engage in an impartial search for Platonic truth; it was to win the damn round. I would happily make arguments I thought were weak if I thought the judges would find them convincing and the weaknesses would be too subtle for the opposition to properly exploit. I would gloss over counterarguments I knew to be potentially devastating if I thought the other side had flubbed the presentation, leaving the audience unaware just how damaging the argument was, and spend more time than was necessary heaping mockery on the weaker arguments, hoping it would make my opponents seem silly and undermine their broader credibility. I certainly wouldn’t volunteer my own doubts about my arguments, or acknowledge responses I thought had hit home—unless strategically, as a prelude to a stronger counter.

So “intellectual honesty” is, in a sense, a higher standard than mere honesty.  And while dishonesty in argument is pretty much always a bad thing—you can imagine extreme “murderer at the door” counterexamples, of course—it’s not clear that “intellectual honesty” is necessary in every context. Sometimes—as in a debate round or an adversarial legal proceeding—you want everyone to make the strongest case they can for whatever position they’re assigned to defend, regardless of their own view, to get a clear contrast—or “good clash,” as we used to call it. Sometimes the point is working consensus rather than a search for some ideal.  If I make the case for school vouchers to a religious audience and point out how it would allow them greater freedom to have their kids educated in their own traditions, this might be “intellectually dishonest” in some sense: I think the religious indoctrination of children is a bad thing! And I’d be pretty queasy if the result of a voucher system were a dramatic increase in the number of schools treating “intelligent design” as a serious scientific theory.  I would be giving reasons why they should want to support a policy that I favor for mostly distinct reasons, not sincerely advancing what I think to be the best arguments—and that’s OK sometimes! It’s also a matter of degree rather than kind: I know many people who are at least as smart as I am disagree strongly with lots of my views, so I’m acutely aware that I could be wrong, and that it’s highly probable I’m mistaken about many things.  But instead of constantly hedging and qualifying—though I do plenty of that—I plunge ahead and trust that everything will work out in the Great Wiki.

All that said, what we often want from writers, above and beyond the minimal requirement that they not deliberately mislead or misinform us, is the full and sincere engagement of their brains, including all the doubts and reservations, rather than the most vigorous defense they can offer of a position. And since so much of politics is ultimately about winning the round, that kind of honesty is a good deal rarer than I think would be healthy.

Update Andrew Sullivan adds:

Sanchez wants writers to give “the full and sincere engagement of their brains, including all the doubts and reservations, rather than the most vigorous defense they can offer of a position.” But in my view, that often is the most vigorous defense. If you can include the obvious counter-points, acknowledge their strengths and still argue forcefully against them, you are much more persuasive.

Absolutely—at least much of the time—which is one of the things I had in mind when I alluded to making concessions “strategically, as a prelude to a stronger counter.” We used to say that if you want to be a really good debater, you have to be able to “opp yourself better than your opp.” There are few things more rhetorically effective than being able to restate your opponent’s best arguments more clearly and forcefully than they themselves did—and if you really want to show off, point out how the argument could be developed or improved—before proceeding to blow it out of the water.  If you really wanted to pull the rug from under them, you’d play the Bunny Rabbit gambit and briefly preview the best arguments before your opponents got up, leaving them sounding lamely like they had nothing original to say.

But there are caveats. You’d do this when you knew you could actually answer the argument, or when you were confident enough that the net weight of the arguments was so disproportionately on your side that you could afford a minor concession to seem gracious and reasonable. But it was pretty risky if the round was substantively a close call. It wouldn’t work to be too dismissive, to simply try to ignore a counterargument that clearly raised serious problems—obvious hackery is definitely unpersuasive. But the appearance of confidence and authority really are pretty powerful, and when the balance of arguments is even enough or the issues complex enough, the tiebreaker for judge or audience is often simply who seems most certain. I mean, there is a reason that when it comes to appealing to a broad audience, the standard bearers for political movements tend to deal in sound-bites delivered with an air of uncompromising, apodictic certainty. If intellectual dishonesty were really less persuasive—to the average voter, anyway—it would be a mystery why we see so much of it.  I’d assume it’s less persuasive when the audience recognizes it as such, but most of the audience, having lives and jobs and whatnot, aren’t paying that close attention.

Update 2 One last thing worth adding is that while normally “dishonesty” implies something intentional—the difference between a lie and an error is whether you know what you’re saying is false—I don’t think intellectual dishonesty is necessarily like this, at least as the term seems to be commonly used. You can, I think, be uncharitable to opponents, give their arguments the worst possible interpretation, utterly fail to examine your own biases or assumptions, and dismiss inconvenient facts as presumptively somehow tainted—all while consciously imagining you’re a warrior for unvarnished truth. In that sense, “intellectual honesty” seems a little more like “journalistic responsibility,” say, than plain vanilla honesty: It’s an active and reflective process, as opposed to a mere absence of conscious deception.

The program of warrantless NSA wiretapping (and data mining) authorized by the president shortly after the 9/11 prompted a flurry of intense debate over its legality when it was disclosed by The New York Times back in 2005. Those arguments have, by now, been so thoroughly rehearsed that there’s not a whole lot new to say about it.

But like Monty Python’s Black Knight, some of those old arguments keep popping up — as evidenced by John Eastman’s contribution to the Cato Unbound roundtable on the digital surveillance state we held last month. So while the roundtable’s over, I thought it would be convenient to round up a compact version of the main arguments in one place, for the convenience of folks who might not want to slog through the many law review articles that have been written on the subject.

The touchstone for modern analysis of executive war powers is, by general consensus, the tripartite schema elaborated by Justice Jackson in his concurrence in the Youngstown steel seizure case :

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power….

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain….

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter…. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Using this as our starting point, it becomes clear that an analysis of the NSA program entails answering a series of distinct (though related) questions. First, we need to determine which level of the Youngstown schema applies. If we’re in Youngstown’s Category I, then the NSA program was illegal only if it exceeded the constitutional constraints on government surveillance established by the Fourth Amendment. If, on the other hand, we’re in Category III, a constitutionally permissible surveillance program might nevertheless be illegal. So I’ll consider three questions in turn: Did the NSA program violate federal statute? If so, does the statute trump whatever inherent power the president might enjoy as commander in chief in this context? Finally, does the program as it’s been publicly described violate the Fourth Amendment? An affirmative answer to either the first pair of questions or the third will entail that the NSA program was illegal.

The AUMF

The statutory question may seem like something of a no-brainer: The Foreign Intelligence Surveillance Act of 1978 states explicitly that its procedures establish the “exclusive means” by which domestic electronic surveillance for foreign intelligence purposes. In this case, the obvious answer is the right one. But the Justice Department has attempted to claim that Congress cleverly managed to repeal the “exclusive means” language without telling anyone about it back in 2001, when it passed the Authorization for the Use of Military Force against the perpetrators of the 9/11 attacks. Probably the most decisive demolition of that argument was offered by David Kris, who currently heads the National Security Division at the Department of Justice, but it’s worth reviewing briefly why this argument is so implausible.

The central problem with reliance on the AUMF is that FISA itself contains a provision providing a 15-day surveillance grace period following a declaration of war. As the legislative conference report explains, this was intended to provide time for Congress to consider whether any wartime modifications to the FISA structure were necessary. Plainly, then, Congress did not imagine or intend that a declaration of war (or “authorization of force”) would in itself implicitly loosen FISA’s fetters beyond that grace period.

Moreover, Congress has repeatedly amended FISA since the 9/11 attacks, both in the PATRIOT Act passed almost simultaneously with the AUMF, and in subsequent legislation over a period of years. As Glenn Greenwald recounted in his lead essay for the Cato roundtable, it has expanded government surveillance powers in a variety of ways, but none of these prior to the Protect America Act of 2007 (superseded by the FISA Amendments Act of 2008) approached the breadth of the NSA program, and even these establish at least a modicum of judicial oversight, however inadequate. Again, this history sits uneasily with the premise that Congress understood itself to have authorized such broad domestic surveillance when it passed the AUMF.

Indeed, as former Senate Majority Leader Tom Daschle explained in a Washington Post op-ed shortly after the revelation of the warrantless wiretap program, the Senate explicitly rejected language sought by the White House that would have extended the authorization to actions within the United States. Then–Attorney General Alberto Gonzales has publicly acknowledged that the Bush Administration contemplated asking for a more specific amendment to FISA authorizing something like the NSA program, but concluded that it would be “difficult, if not impossible.” We are being asked to believe, in other words, that Congress intended to implicitly grant authority that the administration was certain would be refused had it been requested overtly. It is, as Justice Frankfurter put it in Youngstown, “quite impossible… to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.”

Basic principles of statutory construction disfavor inferring implicit repeal of specific statutory language from more general authorizations, except in the face of “overwhelming evidence” of congressional intent—and the Court has accordingly rejected parallel arguments in several recent War on Terror cases, as in Hamdan v. Rumsfeld, where the court found “nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization” for military commissions spelled out in the Uniform Code of Military Justice.

The evidence here is indeed overwhelming, but it uniformly cuts against the fanciful proposition that Congress somehow enacted a kind of sub silentio repeal of FISA. I’m inclined to assume this argument was offered primarily because of an understandable reluctance to rely entirely on a radical theory of inherent and preclusive executive powers, to which I turn next.

The President’s Inherent Authority

The first thing to observe with respect to claims of inherent executive authority here is that if we exclude non-binding dicta, the evidence for a constitutional power to conduct warrantless domestic surveillance for foreign intelligence purposes is almost wholly negative. That is to say, it turns on inferences from questions the Supreme Court has declined to directly address rather than on its affirmative holdings. As we’ll see, this is a thin reed on which to hang ambitious claims.

Consider, for instance, the so-called Keith case. In addressing the scope of presidential power to authorize warrantless surveillance against domestic national security threats, the majority noted that they had “not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” But in that very case, the unanimous majority held that a warrant was required in cases involving domestic national security threats, resolving a lacuna expressed in very similar language in a footnote to a previous ruling involving wiretaps:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

The arguments deployed against unchecked executive discretion in Keith clearly have substantial cross-application to the War on Terror, which in many respects bears as much resemblance to those domestic threats as it does to traditional nation state–sponsored espionage and warfare. It will suffice to note, however, that declining to foreclose a power because the fact pattern under consideration provided no occasion to consider the distinct issues involved, as the Court did in both Katz and Keith, is not at all the same as affirmatively asserting it, let alone defining its scope—a point to which I’ll return in the next section.

Nevertheless, let’s suppose arguendo that there is some such inherent power, whether broad or narrow. Eastman and other defenders of the NSA program stil err in conflating inherent power with preclusive or indefeasible power. As a simple conceptual matter, this cannot be right, or else the third Youngstown category would collapse into the second: If all “inherent” presidential powers were per se immune to Congressional limitation, Category III would be superfluous, since it would never yield a result different from analysis under Category II.

Fortunately, we need not restrict ourselves to conceptual analysis, because precedent and practice both speak directly to the question, and both support robust legislative power to constrain even those presidential powers grounded in Article II. The legislature has, from the founding era on, assumed that its Article I power to make “rules for the government of the land and naval forces” enabled it to cabin the discretion of the commander in chief, often in frankly picayune ways, by establishing general rules limiting the conduct of a conflict. Prior to the Truman administration there was little indication that presidents saw this as encroaching upon sacrosanct executive prerogatives. Even Lincoln—probably the most obvious early example of a wartime president acting without or contrary to statutory authority—did not claim some general constitutional power to defy Congress. Rather, he argued that when hostilities commenced during a congressional recess, he had acted as he thought necessary given the impracticality of securing advance approval, while acknowledging that it fell to the legislature to ratify or overrule his judgment once it reconvened.

In the few cases where the Supreme Court has had occasion to rule on the scope of executive power at “lowest ebb,” it has repeatedly confirmed that federal law binds the president even in war. In Little v. Barreme, during a conflict with France, the Court found that a specific Congressional authorization for the seizure of ships bound to French ports rendered invalid an executive order that also permitted seizure of ships bound from those ports. And this was so, the Court noted, even though the president’s own commander-in-chief powers would have permitted him this discretion had Congress not spoken. Since the inauguration of the War on Terror, the Court has reaffirmed the validity of such statutory limits on executive discretion, as in Hamdan. Bush’s own Office of Legal Counsel ultimately repudiated a series of memos, penned by John Yoo, that had relied on a more expansive conception of executive power to justify the administration’s War on Terror programs, concluding that they were “not supported by convincing reasoning.”

There is, by general consensus, some “preclusive core” to the executive’s commander-in-chief authority. This includes, at the least, a prerogative of “superintendence”: Congress could not appoint Nancy Pelosi commander of U.S. forces in Afghanistan and forbid the president to remove her. Most commentators see it as similarly foreclosing efforts to achieve the same end by a series of micromanagerial statutes commanding specific tactics be employed at particular times. But the notion that this preclusive core encompasses discretion to unilaterally disregard a general statutory framework governing protracted electronic surveillance of U.S. persons on American soil is simply insupportable in the face of both history and precedent. The argument is, if anything, more absurd when it comes to the government’s illegal acquisition the statutorily protected calling records of tens of millions of Americans, the vast majority of whom obviously have no ties to terrorism or Al Qaeda. Attempts to stitch together a countervailing line from desultory snatches of language about the president’s role as “sole organ” in foreign affairs are entertaining as a sort of exercise in experimental Burroughsian cut-up narrative, but as legal analysis they seem pretty desperate.

The Fourth Amendment

Finally, we turn to the Fourth Amendment. I will, for the most part, consider how the Fourth Amendment applies to the NSA surveillance program prior to the 2008 passage of the FISA Amendments Act.

As Eastman notes, while in most contexts the prohibition on “unreasonable searches and seizures” requires surveillance to be authorized by a probable cause warrant based on individualized suspicion, there are a variety of circumstances in which warrantless searches may nevertheless be reasonable. While this is not the place to conduct a detailed survey of such “special needs” exemptions, such exceptions tend to involve cases in which the subjects of the search are already understood to enjoy a diminished expectation of privacy (students in school), where the searches are standardized and minimally intrusive, where the targets are in a position to raise challenges before a neutral magistrate if necessary, and where prior court authorization would be highly impractical. No exception that I am aware of can plausibly be stretched so far as to permit sustained, discretionary, warrantless electronic surveillance of members of the general population—a method recognized to be so intrusive that in the criminal context, federal statute requires investigators to meet a higher standard than applies to ordinary physical search warrants.

It’s worth noting in passing that the existence of the statutory FISA framework is at least arguably relevant to the Fourth Amendment analysis here. What measures are “reasonable” will often depend on context, and upon the available alternatives: The use of lethal force in self-defense might be found reasonable as a last resort, but not when the victim has an easy avenue of escape or a taser handy. Similarly, if the only alternative to conventional criminal courts were warrantless surveillance—if Congress had made no provision for a highly secretive court to consider classified applications under secure conditions, with ample flexibility in cases of emergency—one might be more inclined to sympathize with some degree of executive improvisation. In light of the elaborate mechanisms Congress has provided, an appeal to impracticality is considerably less compelling.

But let’s bracket that for the moment, and again suppose for the sake of argument that the president has some inherent authority to conduct warrantless domestic wartime surveillance. Let’s further assume away any statutory problems. Can the NSA program be squared with the Fourth Amendment injunction that searches be reasonable, based on what little we know of it? It seems highly unlikely.

Multiple accounts suggest that the NSA program involved algorithmic selection of surveillance targets, possibly triggered by keywords within the communications themselves, almost certainly based on pattern analysis of calling records or other transactional data. The result, according to the Bush administration, was that the international communications of approximately 500 persons within the U.S. were being intercepted at any given time. Since the program operated for several years, both before and after being disclosed, a conservative estimate would place the total number of persons subject to surveillance in the thousands, and most likely in the tens of thousands.

What did all this spying yield? In 2006, under the headline “Surveillance Net Yields Few Suspects,” the Washington Post reported:

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well.

Nearly all the “leads” produced by the program appear to have been dead ends. Indeed, despite the assurances of the Bush administration that the NSA program had saved thousands of lives, a postmortem review by the intelligence community’s Inspectors General found that officials they spoke to “had difficulty citing specific instances where [NSA program] reporting had directly contributed to counterterrorism successes,” though a classified version of the report apparently cites a handful of instances in which the program “may have contributed.”

As a point of reference, the government’s reporting suggests that under criminal wiretap orders, about 30 percent of intercepted communications contain incriminating content. Since “minimization” of innocent communications is necessarily imperfect, and since even the most hardened criminals presumably spend most of their time conversing about more mundane matters, the number of targets engaged in at least some incriminating communication is clearly far higher. That’s what one would expect when evidence establishing “probable cause” must justify surveillance—and Bush officials have claimed the NSA program’s targeting met the same standards. The evidence suggests otherwise.

I’m happy to grant that we should accept a somewhat lower “hit rate” when interception is geared toward protecting the nation from major terror attacks. But if the requirement that searches be “reasonable” is not to be rendered completely vacuous, or totally severed from even a diluted standard of “probable cause,” there must be some substantive test of whether such highly intrusive techniques are actually in service of that vital state interest. It cannot possibly be enough to simply observe that the president has uttered the magical incantation “war on terror.” And it cannot possibly be enough that a program involving interception of the private conversations of thousands or tens of thousands of U.S. persons “may have contributed” to a handful of successful investigations. The question is closer with respect to post-FISAAA programs of interception, which are at least subject to some modicum of independent oversight, but unless we have gotten vastly better at sifting the guilty from the innocent, grave constitutional doubts should remain.