Here's the case:
- Obama opposed retroactive immunity in the bill
- He then changed his mind and decided to support it

Here's part of his response:
"I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power."

He has concerns and says if he had put the bill together, he wouldn't have done it this way. He is compromising and not doing what his conscience says.

He's making a bet though that the people upset with his FISA decision will vote for him anyways. He is both avoiding criticism as weak and working to attract voters swayed by right-wing arguments. And, as Glenn argues, he may be helping many in Congress to cover their butts.

But what he is clearly not doing is passing what he thinks is the best FISA bill.

- David

Assumes facts not in evidence.. You can't know what is in their hearts. Senator Obama made a pretty convincing case that the new measures are needed...

I tend to think the best of people (usually). Unless there is overwhelming evidence to the contrary, I think that Senator Obama and the rest of the 'crats followed their conscience and did what is best for the country.

I mean, seriously.. The GOP's leader has approval ratings in the TEENS!!!

Why would the Democrats CARE about any GOP branding??

The excuse that the 'crats were afraid of being branded as "weak" by the GOP is simply not logical..

Michale.....

Democrats were involved in FISA not because they agree with it, but because they were afraid of being labeled as "weak on terror."

It's not a compromise. They got their asses kicked. When Republicans use the phrase bipartisan, this is typically what they mean. It means getting the Democrats to "rubber stamp" everything you do. And then branding them as weak.

Not to let the Dems off the hook. There's two sides to every relationship and many Democrats have played right along with the Bush administration because of politics. They've made bad decisions such as authorizing the Iraq war because they were afraid of being labeled weak.

Same for the new FISA. Bad for the country, but they're afraid of being called weak.

They need to work to stand for their principles. I think this is largely what Glenn and Chris and I and others are arguing in different ways.

- David

I keep telling ya'all, with a few exceptions (4 to be exact) I am the most liberal one on here. :D

And yes, if everything is secret, I don't necessarily trust politicians (whether they be Dems or Reps) to use their power for good.

And therein lies the rub.. Because you and yours cannot be adequately protected unless it IS in secret..

For me, if it's a choice between knowing the secrets or putting me or mine at risk, I would rather stay blissfully ignorant..

Our world has grown so complex and interwoven that you simply CANNOT go thru life without SOME form of trust in your elected officials. Otherwise you will be miserable..

Remember the old sitcom, FAMILY TIES?? It was the series that launched Michael J. Fox's career. David Gross & Meredith Baxter-Birney played old hippies who have grown up and were raising kids. Their youngest got so caught up in "causes" (Ozone depletion, global cooling (ok I made that last one up :D ) ) that she just was sooo depressed and depressing.

Anyways, my point is, if you think worst case scenario about EVERYTHING, what's the point in life???

And I don't believe in the "guilty until proven innocent" argument you put forth. That's not a law I'd support.

I sure wish more on the Hysterical Left would keep this in mind...

Your example of someone being executed when they may not have committed the crime is a great example of what could happen.

Yea, but as I see things now, you have to consider what COULD happen if NO action was taken.. That doesn't really apply to the murder, but it does in today's counter terrorism actions. Yes, it's sad that an innocent man is incarcerated.. But what of the possibility that the man is guilty and allowed to kill again??

And Glenn Greenwald at Salon has a great article on how many of the Dems covered their own butts in the FISA vote:

Normally, I don't read Greenwald. His Anti-Obama stance rubs me the wrong way.. But I made an exception and I am glad I did. Because it simply re-enforces what I have been saying all along. That these measures **ARE** necessary for the sake of the country. It's a complete bi-partisan conclusion..

It's also as I suspected. The ONLY reason that Impeachment is "off the table" is because Congress authorized EVERYTHING that Bush did....

I have been saying that exact same thing for months..

Nice to be vindicated.. :D

Michale....

And it's not about keeping Bush in power. It's about building a "permanent Republican majority."

http://rawstory.com/news/2007/The_Permanent_Republican_Majority_1125.html

And yes, if everything is secret, I don't necessarily trust politicians (whether they be Dems or Reps) to use their power for good. Nixon succumbed to temptation. Hence the reason for oversight, not a rubber stamp.

And I don't believe in the "guilty until proven innocent" argument you put forth. That's not a law I'd support.

Your example of someone being executed when they may not have committed the crime is a great example of what could happen. Now that person might be a scumbag, but could also be a saint. Doesn't matter. We can't prosecute people just because they might be a scumbag. Not until we prove some crime. It's the basis of our entire justice system.

And Glenn Greenwald at Salon has a great article on how many of the Dems covered their own butts in the FISA vote:

http://www.salon.com/opinion/greenwald/2008/07/15/complicity/index.html

Peace out,
David

And rather than fight to go after terrorists, all of his requests are about expanding executive power.

Expanding the executive power to fight terrorism. I mean, seriously. Do you HONESTLY think that Bush WANTS to listen in on every day Americans?? Why?? Ignoring the sheer MAGNITUDE of such a task, the question is why would Bush want to?? Do you think he REALLY cares about Billy Joe Jim Bob's moonshine?? Or Aunt Matilda's corns on her feet??

What reasonable and rational reason would Bush have to want to do that??

Political blackmail is a possibility, I grant you, but a remote one. The likelihood of getting caught and the consequences of getting caught are just too great to consider it a realistic reason.

As far as keeping Bush in power?? In 8 months or so, Bush is going to be gone.. So, that's not logical either..

What I like about Obama is that I believe he will put the country first without politicizing the argument. That's my hope anyways.

Same here... That is why I was so heartened by Obama's support of FISA. It's just not possible that it was a case of political pandering. As the reaction showed, Obama lost a LOT more than he could EVER hope to gain.. The fact that there was every political reason to kill HR6304 or at least stand against it, shows me that Obama stood on principle more than anything else. That politics didn't enter into his decision. That's the kind of attitude that first drew me to Obama. A kind of "Jack Ryan" who does the RIGHT thing, regardless of whether or not it is popular...

But when you start going after terrorists just because someone says they're terrorists, that's a dangerous can of worms. Why not just label all Muslims terrorists? For that matter, why not just label all Democrats terrorists :)?

Let me tell you a story. It's not a "what if", it's a true story.. I was chief of operations for a large security company that specialized in high risk operations. I had many good friends on the local, county and state police forces. One day, a high profile State official was brutally murdered.. (Not one of our clients :D ) It was the talk of the town for months. They finally arrested a subject and said that the motive was strong arm robbery. But there was major controversy surrounding the arrest. There didn't seem to be much evidence to support a conviction and there was compelling evidence to support that the suspect was a patsy and that the real motive was a conspiracy high up in the State government. It was rather personal for me, because my wife was an eyewitness to the crime. But it was never followed up on.

I remember remarking to one of my cop friends how this conviction seemed like a bum rap and maybe the guy really didn't do it.

His response I remember to this day, verbatim..

"Doesn't matter if he did it or not. He was a scumbag who probably did a bunch of other stuff that he didn't get busted for. So it all comes together in the end"

That bothered me for two reasons. One, I didn't like that an innocent man was going to die. (Did I mention he was put to death for the crime??) And, two... It means that the REAL killers are walking around free..

Now that was back when I was young and more idealistic than I am today...

I now since the point of that cop friend's attitude..

How does this translate to the "terrorist" issue??

If there are people being held as terrorists who are well and truly completely innocent of ANY crime, I am sure that that will come out. I mean, seriously.. Do you think our people WANT to torture innocent people because it get's them their jollies??? Do you HONESTLY think that??

So, if the people are truly and completely innocent, it will come out..

And for those that are guilty, well then they just had a turn of bad luck.. Perhaps they should have lead a more honest life....

It's a shame that this is the way it has to be, but when one considers the alternative.....???

Aren't you glad I didn't do a point by point? :D

Michale.....

But my argument that Bush is using terror as a political weapon does not come from my animosity towards Bush.

It comes from what I've seen of his administration. He has chosen to pursue Iraq rather than pursuing Bin Laden. He continually beats the Democrats over the head claiming they are "soft on terror".

And rather than fight to go after terrorists, all of his requests are about expanding executive power. For example, one of the complaints from the intelligence community has been that there's not enough info on the ground. But is this part of his plan? No.

Everything with this President has to go through the Office of Political Affairs. Karl Rove's former office. This is the office that is politicizing every aspect of Bush's administration. He has set up his administration to keep Republicans in power first, do a good job of running the country second.

So rather than my argument coming from any animosity towards President Bush, my animosity towards Bush is driven by his approach to politics - use terror and fear to stay in power. Of course, the coin flips both ways. The Democrats need to be tougher and define themselves better.

What I like about Obama is that I believe he will put the country first without politicizing the argument. That's my hope anyways.

(Ok, it's true he let me down on FISA, but I still believe he will do a better job. My feeling on FISA is that he caved to political pressure rather than doing what is best for the country, but that's another story.)

As for the scenario above. As you tweaked it, you're coming closer and closer to having evidence that the fictional terrorists are terrorists. So long as there is legal evidence, I'm all for going after them.

But when you start going after terrorists just because someone says they're terrorists, that's a dangerous can of worms. Why not just label all Muslims terrorists? For that matter, why not just label all Democrats terrorists :)?

Wow. This is a lot for a Monday. I'm out.
- David

No, your argument is that Bush isn't acting for the greater good and that Bush is using terror as a political weapon. And your only basis for that is your animosity towards Bush.

Evidence seems to be what separates us. I'd like to see some. And you're comfortable with vague assurances from our President that he knows what he's doing.

And that's where my experience comes into play. I KNOW what it's like to command troops. I KNOW that what I hear and do is not necessarily for consumption by the grunts on the line..

The truth is we were viciously attacked on 11 Sep.. The threat IS real whether it's acknowledged by the Left or not.

So, if the President says that he has to listen to my phone calls, because it's the only way to listen to terrorist's phone calls, then I don't have any reason NOT to believe him. Trust is not an issue because I don't really talk about anything that I would care who listened in on.. Once again, I don't feel that MY personal privacy is worth ANY risk to innocent lives.

Let me put it another way.. Imagine YOU are in sole control. You have the MICHALE-given authority ( :D ) to allow or deny Bush's surveillance program.. You, of course, would deny it. A week later, there is a devastating terrorist attack that kills hundreds of thousands.. And it comes to light that surveillance WOULD have allowed authorities to prevent the attack.

Just IMAGINE how you would feel. Being the cause of someone's death, however righteous the cause, is the VERY WORST possible feeling that you could EVER have to live with. The ONLY way you could feel worse is multiplying that feeling by thousands. Or hundreds of thousands..

I know you don't like my "what if" scenarios. Having been on the receiving end of a couple the last week or so over at HuffPo, I see your perspective as to how annoying they are. But I think it is different in this case, because over there, the guy was arguing a tangible legal/illegal issue. With my "what if" I am going for the esoteric consequences of our actions.

In my fictional scenario you said you'd let me kill my neighbor if you knew in your heart I was doing what was right. How do you know? All you have to go on is my word.

Actually, I said if YOU knew in your heart yada yada yada. But I see your point.

However, your neighbor situation is not exactly analagous.. Allow me to tweak it..

First off, my relationship with you is bad. You have lied to me time and time again. When a flood was threatening our neighborhood, your haphazard approach to laying sandbags caused immense damage to our neighborhood and killed a few people...

Now, as bad as you are, your neighbor is much MUCH worse. Your neighbor is the PROVEN leader of a neighborhood gang. This gang is responsible for a dozen brutal murders in the neighborhood. This is all documented as fact.. Then you come to me and say, "Michale, I want to tap my neighbor's phone line to make sure he is not planning more attacks on us."

Now, it's confirmed that we don't like each other. You look down on me and I don't trust you. But, I also know that your neighbor is scum of the earth and so, without hesitation, I say go for it and do you need any tools??

A couple days after you surveill the neighbor, you come to me and say, "Michale, this neighbor is going to attack again and kill every one of us in the neighborhood. I need to kill him before he does. But I won't do it, unless you agree"

I don't trust you. You are incompetent and a liar. But I also must consider that, since you are "in the know", that you MIGHT be right and telling the truth. I know that the neighbor has instigated attacks before so there is ample precedent to believe that it's possible he will attack again.....

So, what goes thru my mind??

On the one hand, you could be lying for political advantage within the Neighborhood Assosciation.. But can I afford to take that risk??
Can I afford to nix your planned assassination, only to see the deaths of each and every one of our neighbors???

OK, OK, that's a hell of a "tweak", but you have to admit, it's more analogous to the current situation.

That's why I'd like to see some evidence. Because all of the evidence I have seen so far seems to point to the fact that this isn't about terror. It's about using terror to play politics. Which is disgusting.

For instance: Whatever happened to going after Osama bin Laden? Remember him? The actual terrorist? Why don't we hear President Bush talking about going after him anymore?

That's the problem with CT operations. If it's public, it's completely ineffective. Worse, it's actually COUNTER productive.

I have always said that one of the worst things about being a cop is that it ONLY shows when you are doing a BAD job.. Multiply that twenty-fold and you get an idea how bad it is in CT ops.. When CT ops do a bad job, people die...

As far as not mentioning Bin Laden.. Would YOU want to talk about your biggest abject failure of your presidency???

Oh, and just for the record?? Regarding your "neighbor" problem??

Gut the fucker!!

Michale.....

I judge him as I would anyone else. I look for evidence to see what kind of a job he is doing. So I'd look at things like:

- How he falsely talked us into the Iraq War
- How poorly he handled Hurricane Katrina
- How much of the legislation he has passed has gone to help large corporate donors like the oil companies, pharmaceutical companies, and banking industries
- How he plays politics w/ the justice department; firing attorneys for no other reason than they don't align politically with him
- How he talked big about a faith-based initiative and then, once elected, barely funded it
- How he promised "small government," yet resides over one of the biggest governments in history
- The national deficit
- And, the current banking and housing crisis

When I look at the evidence, I don't see President Bush doing a good job. This has nothing to do with partisan politics.

Evidence seems to be what separates us. I'd like to see some. And you're comfortable with vague assurances from our President that he knows what he's doing. Well, if he knows what he's doing, he sure does an awfully good impersonation of someone who seems completely unqualified and overwhelmed by the job.

Don't get me wrong, Michale. I'm sure he's a decent guy. But he's a decent guy who doesn't seem to know what he's doing. And I'd like to think that we should have someone who is qualified to be President as our President.

There's two ways to get respect. One, is from the position you hold. And the other is to earn it. I respect the position of the Presidency. But the man who is holding it has done little over the course of 8 years to have any of the earned respect.

You're arguing that anytime Bush (or anyone for that matter) shouts "terror" he should get what he wants. No questions asked. Because you know in your heart.

In my fictional scenario you said you'd let me kill my neighbor if you knew in your heart I was doing what was right. How do you know? All you have to go on is my word.

That's why I'd like to see some evidence. Because all of the evidence I have seen so far seems to point to the fact that this isn't about terror. It's about using terror to play politics. Which is disgusting.

For instance: Whatever happened to going after Osama bin Laden? Remember him? The actual terrorist? Why don't we hear President Bush talking about going after him anymore?

- David

President Bush knows more about the situation and issues then you do.

That being the case, you simply cannot unequivocally state that he is in the wrong...

As to your scenario, let me lay one on you right out of "24"... Literally..

Recall the 2nd Season (Or was it third??) where Jack Bauer was "ordered" to kill Ryan Chapelle or else thousands would die??

It's called the Devil's Alternative. AKA Damned if you do, damned if you don't..

How does this apply to your "Kill Your Neighbor" scenario? Easy...

If you know in your heart and are completely sure that killing your neighbor would prevent the death of thousands, then THAT should be your only consideration... The fact that you would also get your neighbor's land (or wife, but we don't want to open THAT can o' worms, do we??) should be completely irrelevant...

Consider the issue of Johnny in The Dead Zone... He KNOWS that Greg Stillson is going to ignite WWIII and kill MILLIONS... Does that justify killing Stillson??

Finally, I ask you to consider things without an eye towards GOP/Democrat, Bush Bashing or any other partisan/political crap....

Do we, as a country have a right to survive?? Do we, as a country, have a right to protect our citizens? And, if it comes down to a choice between a little less privacy, but a lot more safety, then what is the logical choice??

Michale.....

Suppose I live in utilitarian land. I want to kill my neighbor and take his money. But ... there's a problem. Killing my neighbor is deemed wrong by my utilitarian neighbors.

Now if my neighbor is a terrorist, however, things are different. So I build a case against him as a terrorist. I claim he has weapons of mass destruction. The people say, where's your proof? I can't tell you because it might jeopardize my terrorist operations. Well, how do we know he's a terrorist? Because I tell you I have proof. Where's the proof? I can't show you, but he's a terrorist and if I don't kill him millions will die.

Is it ok to kill my "terrorist" neighbor?

According to your "greater good" argument, the answer would be "no" because I'm acting for selfish reasons even though I'm stating otherwise.

But, as one of the neighbors in utilitarian land, you don't know why I really want to kill my neighbor. The only argument you hear is that he is a terrorist and this sounds good from a utilitarian standpoint.

As a neighbor, what do you do? Do you let me kill my neighbor because I say he's a terrorist?

Iraq is not about terror. It is about our country wanting to secure oil for the future. To refer back to the analogy, it's about taking their money.

Similarly, the new FISA is not about terror. Even though the President will claim this over and over. The new FISA is about our President selfishly protecting himself and the telecom companies that broke the law. The new FISA is about extending the power of the executive branch.

Yet it's amazing to me that people still believe our President is trying to act for some greater good even though time and again, his words have been proven just that, words.

Really, he's using terror as a political weapon. The big question will be, now that the Democrats have caved on one issue, how will he use it next? Republicans always have to have some issue that the Democrats are weak on. Even if they manufacture it. My guess is we'll be hearing a lot more about Iran.

But I'm glad we agree on something: Our President needs more intelligence. I've argued from the very beginning that he doesn't have enough intelligence. And every time I think that maybe he has enough intelligence to handle an issue, he goes out and proves me wrong.

So my profound hope is that through FISA, our President might actually listen to some of the people in his country. Maybe he'll wiretap an actual economics expert. Or a security expert. Or some statesmen. Or even just some average people. My hope is that he may actually gain some intelligence if he is able to listen to enough people in America.

- David

You were, weren't you. And not just because you think it was Bush who did it, but because it put her life at risk...

You have outrage that one operative's identity was exposed.

But yet, you want to expose CT operations and methods that puts at risk hundreds, thousands, maybe even millions of lives...

Do you see the inherent contradiction in those two positions??

Michale.....

Yep, it's called Counter Terrorism Operations. And it's ONLY effective when absolute secrecy is maintained...

Here's a simple question that I think I know your answer to but am curious: Is it ok for the President to break the law?

It depends...

Why is the law being broken??

To serve selfish interests??

Or to serve the greater public good??

The answer is easy once that is established..

No to the former...

Yes to the latter...

Michale.....

But if I understand you correctly, we are essentially saying the same thing:

1) Monitoring foreign communications is legal under the FISA guidelines

2) President Bush and the telecoms broke the law to establish a program that went beyond these guideline
s to monitor Americans without a court-approved warrant or probable cause.

NOTE: Your explanation that a line can be a foreign call one minute and a domestic call the next is not what was going on. The government was targeting Americans for surveillance in this country without a court-approved warrant.

They could have been targeting terrorists. They could have been targeting Democrats like Nixon did.

We'll never know though because the black hole of secrecy has become law.

Here's a simple question that I think I know your answer to but am curious: Is it ok for the President to break the law?

- David

"Let's talk about your camp, Colonel. And don't play dumb, you're not as good at it as I am!" - Colonel Flagg

First, you say …
"it's perfectly legal and constitutional for Intelligence services to monitor foreign/international communications"

So which argument would you like to take?

It IS legal for Intelligence services to monitor foreign/international communications. The FISA Act of 1978 established.

As far as the TelComs go, where the alleged illegality enters into things is that in assisting the Bush Administration with LEGAL monitoring, American communications were also monitored. That is the inherent flaw with FISA. It was fine back in 1978 where communication lines by country were easier to access. Now, it's all one big clump of lines. A "line" can carry a call from Syria to Argentina one moment and then carry a call from Sheboiken, NJ to I'llBeQuirky, NM the next moment.

So, what's an intelligence specialist to do??

That is why I have maintained from the get go that FISA is woefully inadequate to handle CT operations.

But there explains how monitoring one line may be perfectly legal at one moment and be perfectly ILLEGAL the next moment.

This is the problem that HR6304 was meant to address...

Michale.....

But Brutha Michale, you're really confusing me.

First, you say ...
"it's perfectly legal and constitutional for Intelligence services to monitor foreign/international communications"

Then you agree with me about them breaking the law and say ...
"Doing the wrong thing for the right reasons should be applauded."

So on the one hand you're arguing it's legal, and on the other hand you're arguing it's illegal, but should be done anyways.

Now I don't know a lot about logic, but I do know that you can't argue both of these points.

So which argument would you like to take?

I'd like to refute one of them, but I can't so long as you take both sides of the issue and do the job yourself.

In the end, what I'm coming away with is that you know this is right, you know it deep down. You believe it. You're not sure why you believe it, but you believe it.

So, like the characters in Predator who spray the forest hoping to hit their elusive prey, you fire off arguments left and right hoping to hit what you know is out there but cannot prove.

- David

"We go straight from the gut, right sir? That's where the truth lies, right down here in the gut. Do you know you have more nerve endings in your gut than you have in your head? You can look it up. I know some of you are going to say 'I did look it up, and that's not true.' That's 'cause you looked it up in a book." - Stephen Colbert, White House Press Corps Dinner

I hope you don't mind that I use your name instead of your posting name. 'David' is a lot easier to remember to spell than Akh... Akj... Er.... the other one...

Anyways...

1) The first two cases were challenges to the constitutionality of FISA and the rulings by the lower court simply held that FISA was constitutional.

Yea, that's the point I was trying to get across. That it's perfectly legal and constitutional for Intelligence services to monitor foreign/international communications...

2) The 3rd case had to do with whether the government could use FISA to gather evidence of a crime. The decision ruled that the Patriot Act provided new latitude in surveillance and said that the government could collect evidence related to a crime as long as a substantial portion of the surveillance was of foreign powers.

Yes, exactly. Basically, the FISA "appeals" court stated the the President has the authority to instigate warrantless monitoring of foreign/international communications.

3) None of these cases have anything to do with Bush's circumventing the FISA law with the NSA surveillance program. The evidence collected suggests that the President circumvented the courts altogether and authorized the NSA's spying program which also intercepted domestic communications.

The point here is that there really isn't any difference between domestic and international communications anymore.. All telecommunications is trunked on global lines.. It's like trying to pick out a single white minnow in a school of millions of light grey minnows.

The technology doesn't exist to do that. So it must all be scooped up and analyzed and then either flagged for further attention or NIV'ed...

One estimate has AT&T owing as much as $146,000 per individual with a phone in the U.S. if they were sued and lost. No wonder they want this bill.

And THAT is exactly why TelCom civil immunity was so important.. Imagine EVERY American allowed to sue for a couple hundred thousand... Our telecommunications infrastructure would last a day... MAYBE two...

5) There doesn't seem to be much argument Bush and the telecoms broke the law. That's why they've fought so hard to amend it and provide retroactive immunity.

Doing the wrong thing for the right reasons should be applauded..

6) I like how you mentioned "probable cause" in your argument. The warrant could be obtained with probable cause. That was the old FISA. Under the new bill, no probable cause is needed. There is also no need to prove that it's a foreign power or agent that is being spied on. The government can now spy on Americans.

No, the government can spy on foreign/international communications. HR6304 doesn't change that.. But IT (HR6304) does INCREASE the 4th amendment safeguards.

Have you read HR6304?? From my last couple weeks on HuffPo, I practically have the damn thing memorized...

And there is ZERO Constitutional conflict with it.. It's GOOD for this country.. THAT is why it has enjoyed such huge bi-partisan support.

The new bill actually erodes our rights more.

BZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ

Wrong... It actually increases protections. I can quote you the relevant sections if you don't want to read it yourself.. Trust me, I can quote them from memory! :D

And, it provides protection to lawbreakers. And encourages companies to break the law in the future.

No... It allows companys to do the right thing for the country without fear of being prosecuted for it.. Kinda like if you drive 90 mph to get your wife in labor to the hospital. You break the law, but it's for the greater good...

The question really comes down to one of our founding principles: Are we a nation where no man is above the law? Or is somehow the President more like a king and above the law?

Strangely, that's not the question I see posed here...

The question I see posed here is, "Are we going to allow our "principles" to sign our death warrants?? Or, are we going to adjust our thinking to the reality of what we find ourselves in?"

Gotta go... Gonna watch WANTED... I never knew Angelina Jolie had so many tattoos :D

Michale.....

As an aside to David.. I'll address the points you made down there, up here.. Since this commentary does have a bearing on the FISA questions....

FISA provides authority for warrantless monitoring of foreign communications.

There have been very few cases involving the constitutionality of FISA. 2 lower court decisions, the courts found FISA constitutional. US v. Duggan, defendants were members of the IRA 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives & firearms. Court held that their compelling considerations of national security in the distinction between the treatment of US citizens and non-resident aliens.

In US v. Nicholson, defendant moved to suppress all evidence gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the 5th Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the 6th Amendment.

However, in a 3rd case, the special review court for FISA, the equivalent of a Circuit Court Of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted the President does have that authority &, assuming that is so, FISA can't encroach on President"s constitutional power."

OK, as I have established as fact, it IS perfectly legal for US intelligence to monitor foreign communications without a warrant…

That's established as fact..

OK Let's take a look at domestic laws..

Cops get a warrant for Joe Blow's phone for illegal narcotics. During the course of this LEGAL monitoring, Jon Public calls Joe Blow and says something about having illegal guns for sale.

Using this NEW information, cops can now get a warrant to monitor Jon Public's phone…

A textbook example of how one legal warrant provides PC (probable cause) for a SECOND legal warrant on a totally unrelated crime.

Everyone with me so far???

OK, so what have we learned??

It is perfectly legal for US intelligence services to monitor foreign communications without a warrant..

On the domestic side, if evidence of a crime is learned during the execution of a legal warrant then this new information can be utilized as PC (probable cause) to obtain a NEW warrant to monitor the subject of the NEW crime…

OK, so how does this all tie in to HR6304??

Simple…

We have legal authority for US intelligence services to monitor foreign communications.

Interspersed with foreign communications is American communications..

During the execution of legal monitoring, evidence of crime is flagged. Anything else is NIV'ed..

Once the flagged item is analyzed, it is determined that it either originated or destinated in US Soil or it involves a US Citizen. One this information is learned, a warrant is obtained based on PC (probable cause) from a legal and constitutional monitoring.

I'll be here all week. Be sure and tip your waitresses….

Michale……