I'll buy the Article III usurpation argument (just like the MCA giving Bu'ush final cut on treaties), but not the "warrants" thing totally. I disagree that the latter is really "clear."

I'm going back through all of my Cuddihy and Rakove and Leonard Levy and The Federalist, etc. Not finding a lot of "original intent" clarity thus far. An subsequent case law is all over the map.

At the end of the day 4th Amendment "reasonableness" will be what SCOTUS says it is. Really comforting thought, 'eh?

HR 6304 also provides for blanket telecom immunity going forward, in addition to declaring "federal pre-emption" prohibiting any state-level legal or regulatory action against the telecoms. Recall those little "privacy policy notices" in your cell phone bills. They are now effectively nul.

BUT WAIT! THERE'S MORE!!!

We taxpayers get to pay the telecoms retail for all of this.

Pardons, bro'. No one will ever get charged with anything.

So, if I were in the military (or simply a private citizen) and the President ordered me to torture or kill a detainee (or anyone he designated as a target), I'm immune from prosecution or other legal action?

Isn't that the crux of the issue?

you're not a suspect, by definition. That would be contradictory."

- Edwin Meese

Wherein he will summarily declare the parts of HR 6304 he finds annoyingly restrictive nul?

Lederman writes -

Moreover, even where the information is not foreign intelligence information, the law permits "the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes."

________

Where in HR 6304 does it say that? I cannot find that statement in the full text of the bill.

"What the democrat party did was gift Bush, Cheney, Rove and all their henchmen near total power to spy on EVERYONE, foreign OR domestic."

___________

Could you specify for me exactly which clauses in HR 6304 clearly confer such power? I'm no fan of this mendacious POS, and have long been a tireless on-the-record defender of constitutional privacy. But, maybe you can help me out here.

http://www.opencongress.org/bill/110-h6304/text

And, yeah, Bu'ush will of course construe any legislative language in a twisted fashion that suits his ends. I'm sure there's quietly gonna be an HR 6304 Signing Statement that will do just that.

OK, since you're a Top Tier Lawyer who has finally read some FISA, maybe you can help with this question, which I just sent Mr. Lederman via email:

_______________________

In http://balkin.blogspot.com/2008/07/al-qaeda-on-speed-dial.html

You wrote -

Moreover, even where the information is not foreign intelligence information, the law permits "the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes."

__

Where in HR 6304 does it say that, as you explicity quoted? I cannot find that statement, or any part of it.

_____________________

Us Great Unwashed Non Lawyers wanna know.

Haven't gotten to that yet, but I will. Thanks.

I have in fact read the legislation, though. But, then, IANAL, and have not stayed at Holiday Inn Express recently.

Thanks. Good stuff.

I still have an issue with Lederman's direct, explicit quote. That language is not in HR 6304.

HR 6304 passed the Senate unchanged. Five amendments were proffered, all failed.

Thanks. Yeah, there it is, verbatim, in the old FISA law.

1801(h)(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

[BUT]

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

FISA Amendments Act of 2008 (Enrolled as Agreed to or Passed by Both House and Senate)

HR 6304. Passed unchanged in the Senate.

http://www.senate.gov/pagelayout/legislative/b_three_sections_with_teasers/active_leg_page.htm

You seem very knowledgeable on this topic.

Y'know, David Brin ("The Transparent Society") says "Game Over" with respect to data privacy, that the only solution is 360 degree transparency.

Right David. Wish in one hand, shit in the other, see which one fills up faster.

Is now an oxymoronic phrase, is it not?

I've been surprised by the lack of pushback on this from the business sector.

Well, yeah, that's that whole "mission creep" issue, which covers not only using the data for blurring-the-lines more general "law enforcement" while end-running the 4th Amendment, but also extends potentially to domestic "opposition research" and political surveillance more broadly. Absent effective independent regulation, oversight, and review, we'll get exactly those things.

"This issue has been kicking around constitutional circles for a while, and Chin's opinion is decidedly a minority view."

___________

So then, why the fuck is this even news?

Waste of bandwidth.