There are precedents for the argument that the Constitution protects only "American Persons." There is some vagueness about whether this means only US citizens, or includes others legally in the US or acting on its behalf. Some recent Federal Court decisions have taken a broad interpretation, as in the mandate that even illegal aliens are entitled to send their kids to public schools.... There have been no publicly known(?) high court decisions that provide much guidance in other situations.

There are ample instances in which Presidents have "exceeded their Constitutional Authority" and mostly got away with it.

I believe it was the current issue of Smithsonian Magazine that has a short article asserting that Lincoln's "Emancipation Proclamation" was an ILLEGAL action on his part. It imposed a new law without participation of the Legislature, and further it changed Consitutional Law since at the time the US Constitution and Supreme Court case precedents specifically said that slavery was Constitutionally legal (in some parts of the US).

An earlier issue of the same magazine examined the attempt by Franklin Roosevelt to "strip the power" of the Supreme Court - by Executive Order and by advocating legislation - when it appeared that the Court was likely to declare that his whole "New Deal" package was a violation of the Constitution. (It probably was, according to precedent then.) The US Legislature has made several attempts at the same sort of thing more recently; and some State Legislatures appear to have had some "success" with respect to State Courts.

The Patriot Act, and the establishment of the FISC contain some questionable features, and it's gratifying that Congress has delayed extension of the Patriot Act. It needs more serious examination, but I'm not sure real hope is justified.

The assertion by the Administration and by others that the President could have gotten approval from the FISC for what he "authorized is clearly either a LIE or is based on ignorance (or on deliberately attempting to mislead the public?).

The FIS Court itself has, in publicly known advisories, specifically questioned the methods the President authorized, and opinions from individual current members clearly indicated that a majority of the FSIC would find that those actions were not acceptable.

What the President "authorized" was the recording of all traffic through particular communications trunk switches, so that computer "pattern searches" could be used to sift through all communications that went through a communication center in order to look for:

1. Evidence of possible plans for terrorist actions, and
2. Identification of persons who might be "terrorist agents."

In addition, the NSF (and possibly other agencies) exerted pressure on US (and possibly foreign) communications companys to reroute massive amounts of "foreign communications" through trunk switches located in the US and/or in specific foreign locations where the NSF could access them easily.

The fundamental question perhaps is whether electronic communications of the kind being recorded and examined are a "private thing" protected by the Constitution, or because of the ease with which it's accessible - and known to be accessed - it should be considered to be similar to "conversations in public" which may generally be legally recorded and used in court actions.

A few Federal Court decisions have held, or appear to have applied the interpretation, that internet communications are not "private" in the sense of the Fourth Amendment. There are few cases that offer clues to how the Courts would interpret the "telephone" converstations that are the main object of the recent NSF surveillance.

There are massive numbers of cases in which Federal Courts have held that situations where most people would assume a "right of privacy" are NOT PRIVATE in the sense of the 4th Amendment. (Most of these involve prosecution of "morals" violations, but they are citable precedent.)

Altogether a messy situation.

John