Warrantless Surveillance Debate Bursts From Shadows

(AP Photo/Evan Vucci)

The court ruling, only the second ever to be shared with the American people, endorsed the Bush Administration's expansive view of law enforcement power to spy without prior court approval on international phone calls and emails even when they involve communications between and among Americans. Holder, for his part, pledged to do a "damage assessment" review of this policy and practice on behalf of the Justice Department. The juxtaposition between the two simultaneous events—like two ships crossing in the night—is striking.

Striking and not a little controversial since President-elect Barack Obama endorsed during his time in the U.S. Senate the latest version of the current administration's surveillance policy. That means that Holder now must gingerly evaluate how the warrantless program came about, whether it is working to its fullest extent, whether and to what extent it reaches too far in infringing constitutional privacy rights, and what can be done if it does.

On Thursday morning, Holder was clear in telling the Senate Judiciary Committee that he believes the president has power within Article II of the Constitution (like the power to eavesdrop) that the Congress may not take away. So it seems that the new administration isn't likely to roll back quickly or significantly the unprecedented powers the current administration took for itself after the Twin Towers fell.

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