New C&L Post
FYI, I have a new post up at Crooks and Liars about the FISA bill.
posted by A.L. at 2:42 PM
Saturday, August 11, 2007
Who Am I? For what it's worth, I'm a litigator at a large national law firm (at least until I figure out how to make a living doing this). Until then, I'll just have to go by A.L.
Recent Posts
- The New FISA Bill Is Even Worse Than You Think
- A Major Loophole in the New FISA Legislation?
- Laboratories of Failure
- Gordon Buries the Lede
- Rudy-onomics
- Bush Demands Further Capitulation
- Selective Leak Investigations
- The Senate Caves In
- "And I repeat limited"
- Obama Press Narrative Emerging
2 Comments:
A.L.-
I didn't want to comment at C&L because there's too much chit-chat going on ever there to follow and this is directed to A.L.
Any thoughts on this?
http://thinkprogress.org/2007/08/10/fisa-bill-unconstitutional/
Basically, some lawyers representing Gitmo detainees are suing to have the bill declared unconstitutional because they believe it is being used to monitor their privileged communications, among other things. It looks like an interesting argument. No ruling date yet, but it seems compelling.
Yeah, this is a part of the ongoing multidistrict litigation out there in the Northern District of California. CCR's case challenging the NSA program got transfered there from NY and I think they are trying to amend their complaint to challenge the new law.
The attorneys at CCR are top notch and you can bet they will make the absolute strongest arguments possible that this new law violates the 4th amendment.
Unfortunately, that's a very murky area of the law, one which hasn't developed much since the 70s because of FISA's existence. I think its highly unlikely that a judge would invalidate the new statute on constitutional grounds. It's one thing to say that a program violates an existing law. At least in that case, the administration can work with Congress to amend the law. But when you invalidate a law, you are really tying the hands of the political branches. They then have to amend the constitution to accomplish what they want.
In that situation you basically have a judge substituting his opinion for the opinion of the political branches, and on a matter of national security. I doubt any federal judge would be willing to do that, and if they did, I bet it would be overturned. I find it all by inconceivable that the current Supreme Court would overturn this kind of a law.
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