The Foreign/Domestic Divide and the Legal Architecture of "Domestic Intelligence"

Marc Ambinder reports that the Director of National Intelligence, James Clapper, gave his first speech as DNI on the subject of "domestic intelligence" (at an event on that topic sponsored by the Bipartisan Policy Center, the national security-oriented arm of which is a direct descendant of the 9/11 Commission and 9/11 Public Discourse Project).  I don't have a transcript of his remarks (please send if you do), but Marc notes that Director Clapper emphasized--apropos of recent stories about Germans traveling to Pakistan, and also the less-noted stories yesterday of French arrests--threats to the  homeland stemming from the fact that the "increasing role of Westerners in Al Qaeda and associated groups increases their knowledge of security . . . practices and increases their access to the U.S." That much is true and important, but I'd like to draw attention to something else the Director said.  Marc reports Clapper's observation that "[t]hreats these days often are not purely foreign or domestic."  This too is true and important, and it should draw our attention to the question of whether  the legal architecture governing intelligence gathering, management, and dissemination is appropriately tailored in light of these developments.  That is, do our existing laws governing intelligence activities in the U.S. rely too much on the assumption that there is a firm categorical distinction between threats that emanate from a "foreign" source and those which emanate from a "domestic" source?  And if so, is the assumption hard-wired into the system (perhaps because of the Fourth Amendment), or is it an issue that can be adjusted via legislation?  Much of the legal architecture of domestic intelligence, after all, assumes that an intelligence target within the United States has or must have some substantial foreign connection; this is central to FISA above all, of course.  The architecture has proven to be relatively coherent in the past, but might prove more problematic in circumstances involving, say, cyberspace or persons who are inspired to terrorism from abroad but whose association with a foreign entity may be tenuous. That's not to say that any particular change is warranted; it's just to suggest that now is a good time to take stock of the issue in light of changing technologies and threats.  Of course, now might also be a good time to pause to take stock of the legal architecture of domestic intelligence with respect even to wholly domestic threats.