Does this FISA legislation (e.g., currently HR 6304) contain patently unconstitutional elements, and, if so, what are they in your opinion?

Of course, realizing that what is "unconstitutional" is what SCOTUS rules as such. For example, the MCA gives the President final cut on treaties such as Geneva, in clear contravention of Article III. SCOTUS hasn't ruled on that yet, and may not ever -- or, if they do, a Roberts Court with just one more right wing seat may well back Bu'ush's authority, constitutional incoherence notwithstanding. After all, we've just witnessed the maudlin spectacle of the otherwise "strict construction" "textualist" Scalia whining in poignant libbie judicial activist fashion against the Gitmo ruling on the utilitarian "people will die" basis.

But, do you seen any glaring specific unconstitutionalities here that might one day be reversed?

Glenn writes

"The court most certainly does not decide if the Government letters to telecoms "show that the government was really after terrorist suspects and not innocent Americans." To the contrary, the judge is barred from examining the real reasons this spying occurred. The judge has only one role: dismiss the lawsuits as long as the Attorney General -- Bush's Attorney General -- claims that the spying was "designed to prevent or detect a terrorist attack.""

(He's referencing part of 802(a) in HR6304 from his prior post)

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I'm trying to reconcile that (that judges have no say) with this, right below that in 802:

(b) Judicial Review-

`(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

`(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

Moreover, 702(b)(5) states that issuance of surveillance FISA orders "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information..." "(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States."

Now, I'm as concerned as anyone about the Bu'ush administration's repeated pissing on the Constitution, and take a back seat to no one in defending the 4th Amendment, but it troubles me to see so many people shooting from the lip about this whole deal having never read the legislative proposal and trusting the likes of Mr. Greenwald to give us the complete and unbiased take on this.

I guess I'll now be summarily admonished that naive GULNs like me ( Great Unwashed Non-Lawyers) should just STFU and leave it to the experts. Yeah, it bothers me that we seem to be returning to colonial era General Warrants and Writs of Assistance (the latter accorded blanket indemnity), but 702(b)(5) alone seems to be inviting SCOTUS to have the last word on this bill should it pass as currently written.

btw, John Dean pointed out that the telecom indemnity extends only to civil suits, leaving open the possibility of criminal actions down the road, perhaps at the behest of a DOJ under a President Obama. Of course, maybe the Senate will snuff out that little oversight forthwith in the next rev.

A Bill of Attainder is one wherein you legislatively "charge/convict" someone of a crime. Look it up. Similarly, an ex post facto law would be one where you make something illegal and then prosecute people who engaged in the acts while they were still lawful. Can't do that.

You've got these backwards.

So, yeah, maybe that language is just a sop, a formality, and, of course, we all know that Bu'ush will issue a signing statement saying he'll abide by the sections that he agrees with and will ignore the others.

I dunno, and while IANAL, I at least repeatedly take the fucking trouble to actually read the details and understand them. I'm not seeing a lot of that this week, just a lot of glandular hyperventilating.

"Everyone knows what the written directives from the President say."

Yeah, even a slug like me knows that. C'mon.

So, -- beyond telecom indemnity -- you're saying 702(b)(5) is window dressing as well?

Why don't you ask those specific questions of your senators and congressman? That's what I'm doing, after at least taking the trouble to read the legislation, so I know what to question and complain about. Have you read HR 6304?

What alternatives do you suggest? Yeah, it sucks, the whole thing. But, sitting back and letting others doing my interpretive thinking for me is not something I will do.