Not really an essay, but some thoughts on where FISA goes after Congress passes and Bush signs it.
1. This does not kill lawsuits. It changes them. The fight now becomes whether the New FISA is constitutional under the 4th Amendment. The Fourth Amendment is pretty clear. It requires probable cause and a search warrant. Neither is required under this version. Now, there are exceptions to the 4th amdmt. rule. You can look at them at Wikipedia. http://en.wikipedia.org/wiki/F… None seem to really cover this area and, clearly, stuff you say over your phone or through emails and even searches you do on the internet do carry with them a reasonable expectation of privacy.
2. So EFF and/or the ACLU attacks the statute. But to attack it may require inquiries as to what is really happening, what the dragnet or data mine actually does. And that, not the 4th Amdt. may be the rub. It’s called the state secrets doctrine and may do more to end these cases than anything else. However, there are some good opinions out there that say no state secrets since much of the details of program were disclosed by Bush.
3. So it stays in court, the attorney general’s office defends against the lawsuit. Who controls the AG’s office? The president. Who is president? Perhaps Obama. If the AG ultimately agrees the New FISA is Uncon, the Constitution is preserved. That is why it is important to watch what Obama says and does now.
4. Will the Supreme Court have an opportunity to ultimately defy the executive branch/A.G’s office and court’s own power to determine probable cause and find the bill Constitutional ? It would surely be an ironic ending–the legislative and judicial branches, so eminently ignored by the executive now, will ultimately be the one responsible for breaking the Constitution.