It seems that you're right that the general concern is about Americans who communicate with targets abroad, not purely domestic communications. However, I recall discussion in the office about chilling effects re: international communications that would harm US academics' abilities to collaborate abroad, which is the only example I remember at this distance.
The original article: http://www.nytimes.com/2005/12/16/politics/16program.html?pa...
My interpretation of the EFF is that while intent matters, and the intent of existing programs is to primarily target internationally, without oversight, there's no distinction between international and domestic wiretapping. We have little sense of what wiretapping does go on because it's all overseen by secret FISA courts.
Here's the '09 report on domestic overcollection: http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=a...
I think the EFF's point is: what protections does a US citizen have against being caught up in these wiretaps, considering the known flaws of the program and its operators? That's where the Fourth Amendment comes into play and questions over probably cause and warrants.
And what is a "purely domestic" communication in this context? Is this message board a domestic communication? A telephone call? A telephone call to a foreign national living in the US? I have no idea. How would I prove that it is or isn't?
I'm not some sort of paranoid that thinks that the government is out to get me. I do know that for routine criminal matters, the Federal government has incredibly broad and effective police powers, even with court oversight. Pre-9/11, the government was already able to gather lots of actionable information about the threat our nation was about to face (and fumbled the ball).
So I'm not convinced that all of this secrecy and lack of accountability is buying me anything as a citizen. Frankly, I'm concerned that by mindlessly gathering vast swaths of data, it will become exponentially more difficult to extract signal from the noise.
We were hired by a Special Master that Congress appointed to conduct a pen test against a branch of the DoI without their knowledge[1]
[1] As part of this class action: http://en.wikipedia.org/wiki/Cobell_vs._Salazar
If you actually read what 'twoodfin wrote without immediately flipping the breaker in your head labeled "David Addington", you'll find you can't even discern his take on executive branch powers. What he's saying is on its face so true as to be banal: Congress cannot in fact pass laws that alter the balance of powers erected in the Constitution.
I don't know how much damage Yoo and Addington's misconceptions about the limits of executive power did to the country. Like you, my guess is "nonzero". But I have a pretty clear read on how damaging comments like yours are to the discourse on this site: immense. Stop it.
FYI, you're supposed to flag comments for being spam or offtopic, not because you disagree with them, from the site FAQ: "If you think something is spam or offtopic, flag it by going to its page and clicking on the "flag" link. (Not all users will see this; there is a karma threshold.) If you flag something, please don't also comment that you did."
You repeated the same idea, again with regard to spying: "Congress cannot in fact pass laws that alter the balance of powers erected in the Constitution."
Maybe you guys aren't coming up with these assertions based on John Yoo's theories, if so I apologize for lumping you together, but it sounds like the same ideas to me: that congress can't restrain the president at this point because we're at war. If it's another legal theory let me know.
> Just stop digging.
What is it about my comments that is so beyond the pale to you?
If Congress passed (over a veto) a law tomorrow requiring the President to fire his Secretary of State, that law would be unconstitutional. The President wouldn't need to wait for the Supreme Court to overturn it, he could simply refuse to obey it, and he would be right. That has nothing to do with John Yoo or whether or not we're at war.
(A similar issue actually came up during Reconstruction: The Tenure of Office Act was unconstitutional, and Johnson was right to violate it, though it got him impeached.)
I say he needs all permission in the world if congress tells him he can't do it. You seem to know of some constitutional spying power that would allow him to ignore congress. Please inform me what this constitutional clause is.
Again: what do you think happens if Congress passes a bill requiring the President to fire his Secretary of State?
Yes, congress cannot impinge on the President's constitutional powers, can't force him to fire his Secretary of State. But spying is not a constitutional power, unless you accept the AUMF war-time Commander in Chief argument. Which is what set off my John Yoo detector.
Really, this is a separation-of-powers fight: How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying? The President has no obligation to obey laws that impinge on his Constitutional authority. Or to put it more gently, he's generally free to interpret those laws as broadly or narrowly as necessary to avoid that impingement.
So I can't get too worked up about the "systematic overcollection" argument. Unless you make it "systematic, deliberate overcollection of purely domestic communications". I am disturbed that the EFF seems to think it's advantageous to blur the distinction (using terms like "probable cause" and "warrants") and make it seem as if these programs are prima facie targeted at domestic communication and unconstitutional.