[to bernbart]: To put it mildly, I know less about the statute and issues surrounding it than he does (which is true of 99% of lawyers). But I have the background that allows me to assess whether his analysis is well-supported and correct. Do you? Does your husband have the knowledge to put together anything like the analyses in that link?

No. He went to Boalt. Oh wait ... I went to Boalt..... ;-)

Cheers,

Aside to Arne - I thought Marty Lederman hit the nail on the head in his latest post - http://balkin.blogspot.com/2008/07/privacy-protective-components-of-new.html - and I thought Julian Sanchez in the comments was spot-on too, but I noticed that you disagreed with both of them to some extent [you interpret the foreign-to-unknown technical problem differently, I gather, though I don't grasp your full argument]. As to email, you assert that there's a technical fix, that doesn't require a change in the law, but I don't understand the import of locating email users via a "POP3" ISP email server as opposed to just 'an' email server. Are there always three servers (POP3 on each end) between two email correspondents?

I say the problems are technical and don't require a judicial solution. We know what s allowed and what is not.

If the gummint wants to snoop foreign-to-foreign communications here they just have to find a way to make sure that this is all that they're snooping.

On another note, e-mail requires a SMTP client for origination (could be an app on your own machine), and a SMTP server for reception (could be your own machine, but for most of us, it is generally not, as such machines should usually have an "always-on" connection and fixed IP). Your e-mails received by your home SMTP server (the SMTP server at the domain/IP specified in your e-mail addy) are usually accessed through POP3 or M$ Exchange protocols.

Cheers,

It is an example of who is al Qaeda, on its face. There is no dispute that can be mounted about "this is happening" or anything else.

I'll beg to differ. There is a dispute that this new FISA law can be used by politicians to attain or retain power, and that is what the 'it' was, if you go back to original context. You've missed the point, and been missing the point. And that is thus: if this law cannot be abused more than the prior FISA was abused for political purposes, than the damage it has done does not justify half of the hyperbolic rhetoric it has prompted here ('Democrats and Republicans are the same', 'the only answer is armed conflict', blah blah baloney). And I don't see that it does. Your anecdote, as I pointed out originally, does not demonstrate that this is being used to undermine the opposition party or in any other way to further the political interests of Republicans. It demonstrates instead that this type of snooping can lead to false accusations and arrests- which isn't unique to it, fyi- but also that these errors snowball under this new system. Ok fine. I am in complete agreement that this is odious, just like I was in complete agreement that the bill was a travesty, not least with respect to the immunity provisions which were the height of corruption.

But let's not forget mitigating factors. Firstly, do you think that Cheney and Addington wanted this power for Obama, because Democrat and Republican intents and purposes are the same? Do you think that this new bill makes Democratic victories in the Congress and for the Presidency any less likely? Do you think there is any risk for the government or politicians in launching fraudulent searches with purpose that end up imprisoning American citizens? (btw, there is recourse to the judicial system, aka rights, as of Boumediene, so much of the next part of your reply is hyperbole). Is it possible to hold a discussion anymore where positions marked by shades of gray are considered tenable anymore?

Which leads well into the next bit:

Give me an example of one out there right now, not of one in the past... It s/he a software engineer from The MathWorks?

He or she could be. He or she could be my mother. Please the court, do you have a point? Are you seriously arguing that there is or isn't anyone out there with the intent to launch a terrorist attack in this country because I, a private citizen, can or cannot identify one, in advance of such an attack, and at this very moment. I'll let you in on a little secret. I used to live in the UK, and not very far from Finsbury Park. I do not suffer any illusions that there are not multitudinous people that reside in the West and have in the past resided in the United States who would see a terrorist attack wherein I got killed as a victory in their struggle. Now I live in New York. A few months ago there was a steam pipe explosion near Grand Central not far from where I work, and huge plumes of what looked to be smoke were rising from what looked to be the train station. If you took a poll at that moment around Manhattan, I doubt you'd find many people concerned that some accidental explosion may have killed a truck driver. They had something entirely different on their minds, just as they did some years ago during the blackout of the North East corridor.

If you wish to deny the nose on your face, that's not my problem. But you should know that this line of argument is counterproductive to whatever you may hope to advance which, coincidentally, is also what I would want to advance. The difference between me and most of the quixotic crusaders on this site is that I like to win. Telling people that they need to show that terrorists exist or what a terrorist is- and not the ones earlier in the decade that have blown us up, or the ones just a few years ago that have blown up the UK and Spain, but one that plans to blow us up here and now or at least soon- when that is patently obvious to all but the willfully obtuse, will not advance any civil liberties argument with the 99% of people running around out there who does not share these lawyerly delusions. Does eta exist? Did the IRA exist? The Tamil Tigers? Spare me.

More importantly, as pertains to this law, when will you know you have found them all?

I don't suspect this problem is going away any time soon, but that dispiriting conclusion happens also to have the virtue of being patently relevant. Listen, you want to know the surest route toward full scale erosion of our civil liberties martial law style? Further successful terrorist attacks. Just look at the casualties from this single one. And, frankly, I would not hardly imply that this country's behavior since 9/11 has been 100% irrational, even if this bill and many other things such as the invasion of Iraq qualifies as such. Much of it is actually quite rational, and anyone who expects for a country not to have a massive reaction to a hostile attack on scale is living in a dream world. Human nature is to deal with vulnerability by confronting what it is that is making you vulnerable. I would argue that perceptions, rhetoric and questionable policy is far more responsible for our vulnerabilities than crazy Muslims, but I would not remotely argue that the latter don't exist, (both because they do, and because it's hardly a winning strategy to argue otherwise). And I will tell you with a high degree of confidence that you are not helping anyone with anything by broaching this topic, using legalese or otherwise.