On August 5, President George W. Bush signed into law legislation that amended the Foreign Intelligence Surveillance Act of 1978 (Fisa). This new legislation authorises electronic surveillance of international telephone conversations and e-mails, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is “directed at a person reasonably believed to be located outside of the United States”. The law requires neither a search warrant nor probable cause to believe that the target of the investigation is a terrorist or even an associate of terrorists.

In effect, this legislation ratifies the secret surveillance programme that Mr Bush unlawfully implemented in 2002. It could not have been enacted without the support of a significant number of Democratic senators and congressman. Many of the Democrats who voted for the law did so despite their prior criticisms of the Bush surveillance programme, despite the consensus view among legal scholars that that programme was unlawful and despite a federal court ruling declaring it so. How, then, could these liberty-loving Democrats support this legislation?