The argument is also a scary one, because historically “national security” often has been used to excuse the suspension of individual rights.

For example, there are proponents of national health care and cap and trade who claim this is somehow necessary under national defense. Absurd.

And it happens now because of the precedent set by people who had no problem with the clear constitutional violations of the patriot act because of “national defense”

The argument is also a scary one, because historically “national security” often has been used to excuse the suspension of individual rights.

For example, there are proponents of national health care and cap and trade who claim this is somehow necessary under national defense. Absurd. And it happens now because of the precedent set by peopl who had no problem with the clearl constitutional violations of the patriot act because of "national defense"

Much of what the act is implemented to do (although I am no expert on the full scope of the act, so there may very well be parts that fall under within the jurisdiction of the states or have no authority to exist at all) falls under national defense, particularly the intelligence / counter-intelligence part of it.

That said, the claim that the so-called national security letters are required is bogus. There is a need to be able to act quickly to protect against immediate threats or take advantage of intelligence sources, as some of them may be perishable. However, there is absolutely no reason that any should be exempt from having to get a warrant at some point.

There is no reason why they can't execute the activity if they believe that the target poses an immediate threat or that critical intelligence will be lost, draft the warrant, and then be required report to a magistrate within 24 or 48 hours of the start of the activity.

At that point, the magistrate can determine whether the activity was justified. If it was, then the magistrate issues the warrant to allow the agency to either continue the activity or proceed with prosecution.

If not, the judge either orders them to do more homework before they will issue a warrant, or determines that there is no justification for the activity and orders the agency to cease and desist.

Unfortunately, this gets into the very sticky issue of who to get involved in intelligence matters; intelligence operations and the information they produce are guarded for very good reason. You could require that multiple agencies be involved to provide oversight, but then you increase the risk that some dummy will open their mouth and compromise an operation (i.e., the NSA being able to track Osama Bin Laden using his cell and satellite phones, until some moron leaked it to the press) or worse, a source (which could literally be a death sentence for the source).

The aftermath of 9/11, when everybody found out about the lack of communications between the intelligence and law-enforcement agencies highlights the other issue. There needs to be a method to facilitate moving quickly when necessary, while ensuring proper oversight.

In this case, you run into the necessary limitation on the number of people who can be given information about the operation to protect it. The other issue is making sure that the necessary people are readily available so that agencies can act quickly when the threat justifies it; a person being unavailable, or having someone who doesn't like the operation or people running it (or is even sympathetic to the target) can delay the process long enough to enable a target to conduct an attack, slip away from surveillance, etc.

Just some thoughts..

On that front many states are making a stand.