There is no effective or functional difference between, say, Bush, issuing a signing statement that ignores the intent of a law in order to preserve, for future exercising, his power as president, and the Democrats ignoring the intent of the law in order to preserve their bid to exercise presidential power in the future.

.

In both instances, the power of the presidency is seen to be the paramount concern, the rule of law a secondary or subservient consideration.

Despite this, there will be those who excuse the Democrats for ignoring the rule of law now (although they may curse them for being "lame" or "corrupt"), in order to attain presidential power.

Such persons will see a distinction where none exists, thus preserving and conferring the prerogatives of presidential power...at the expense of their own freedoms.

America's two-party system is a brilliant disguise - at least for those eager to be fooled.

-- The Reality Kid @ 10:04 AM

Amen, TheRKid. Superbly stated and summarized.

Jay Rockefeller, as one FISA-related example, who appears to be the autocrat's autocrat, is (or was until FISA exposed him to public awareness) a master of this disguise. He brooks no disagreement to a position he's reached and does his best to shut down public debate. "I'm not into [law enforcement and Constitutional checks and balances]" he flatly states at the conclusion of his press conference touting obvious deception of Congress and the nation in the push for war by the Executive Branch, to try to excuse his intense desire to continue looking the other way. And the friendly self-serving media, along with fellow members of his political party, obligingly help Rockefeller to do just that.

I think the "thousands of warrants" (if accurate) line in Lichtblau's astonishingly ill-informed article may add credence to the assumption that it is, in fact, stored emails on U.S. servers (for already-known entities) that constitute the "foreign to foreign" problem usually publicly described as involving phone calls (rather than stored emails).

http://balkin.blogspot.com/2008/06/what-fisa-debate-is-not-about.html

Http://letters.salon.com/opinion/greenwald/2008/03/07/surveillance/permalink/b0e57886590600cb4102bbf2bc1a4c13.html

And the stored email fix, though embraced by Congress as a whole, may involve a conundrum: Foreign-sent emails reside on a U.S. server pending retrieval by intended recipients. In what sense, exactly, are they "foreign to foreign" at that stage of the interception process? [The email content may never be retrieved at all by an addressee, as one example, but instead simply deleted from the U.S. server as spam.] The Intelligence Community "directives" are going out to the U.S. ISPs that own those servers, ordering them to allow the government to collect that stored data sent by foreigners, and (presumably) eventually, but not yet, mostly to be retrieved by foreigners abroad as well.

The "mostly" there is at issue, it appears, because it's seemingly not amenable to a clean, precise technical fix, especially pre-retrieval by the intended recipient. The proposed "guidelines" of Congress (at least of the House) regarding how to define and ensure that the "mostly" (via broadly-worded intent phrases in the law, and secret software programming filters) holds true, are at the crux of the conflict between Congress/FISC and the free-hand-for-six-years actors in the Executive Branch.

As 'thelastnamechosen' puts it well, when that "mostly" turns into "sometimes" or "never," and/or for the remainder of the whole (meaning the accounts holding email on that ISP server that are not part of "mostly" foreign to foreign stored email) this is the result:

[Individualized, probable cause] warrants will not be required when searching U.S. citizens for foreign-to-foreign communications and those searches will be secret and enforced by a secret court.

Glenn, I think, is exactly right in saying, and highlighting, that this "foreign to foreign" (stored email or otherwise) problem is being rewarded by the Democrats who are trying to grant to the government - heedlessly ignoring the vast intervening technological changes that make a mockery of the slim holding in Maryland by which the NSA, et al, have waived the Fourth Amendment - broader, unconnected domestic surveillance authority in other areas of signals intelligence, by using (and allowing the administration to exploit) the "foreign to foreign" problem as convenient cover.

As I recall DNI McConnell's testimony to Congress, when the Terrorist Surveillance Program was first brought under FISA in some form in early 2007, the first FISA judge to review it (and its kin) pretty much rubberstamped it, and that may have been a reason (along with the new Democratic-controlled Congress) why the FISA Court was re-engaged in the first place. By that spring, however, apparently at least two other FISA judges had apparently progressively weighed in with their interpretations of the (presumably) novel (to FISA) stored email retrieval/TSP-related problem, and they forced the return to individualized FISA warrants for some set of known targets. Thus necessity led to the invention of the Protect America Act, and its broader "modernization" of FISA that is being ushered in under cover of the FISA Court-enforced mysterious "intelligence gap."

From the link above, here's Marty Lederman's best guess as to the reasons for the FISC-reimposed warrant restrictions (he assumes stored 'foreign to foreign' email on U.S. servers is an easy technical fix, I believe, and not the major problem identified by the FISC):

Therefore, as I surmised last summer, it must be the case that the NSA's objective is not simply to surveille foreigners who it already suspects as being part of al Qaeda -- it can obtain a [straightforward] FISA order as to those folks. What the agency is seeking, instead, is to be able to intercept foreign communications (i) coming across domestic wires where (ii) NSA does not have probable cause to believe that any of the parties is a terrorist or agent of a foreign power; and (iii) there is a chance that some of the intercepted communications will be with persons in the U.S.