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Citizen Voices

Bright Line Rule

Last week, President Bush failed to extend temporary Foreign Intelligence Surveillance Act laws through Congress .

The way Bush sees it, the FBI will not be able to effectively intercept vital information, meaning Islamo-facists will be free to plan jihad, which will inevitably lead to another tragedy on the homeland, terror alerts will oscillate through the color wheel, and more civil liberties will be downgraded and sent off into obscurity. He paints a bleak portrait in bold strokes.

When Bush puts it that way, it reminds me of my craving for absolutes during law school. Ah, for an absolute…no balancing factors to consider, no “reasonable person standard” to analyze, no facts to consider. It’s a bright line rule - plain and simple, like dry toast and black coffee for breakfast.

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Some law students regard the phrase “bright line rule” as a beacon of light – true and definitive. This is so because of the myriad exceptions that almost overwhelms many rules themselves.

Chuck from Escondido, CA
February 19, 2008 at 12:40 AM
I'll be relieved if the House Democrats stand firm on this too, but more surprised. This is one of those issues where I get really confused wondering why the Democrats wanted to be the majority party in Congress.

Alma from San Diego
February 19, 2008 at 11:59 PM
I get confused about what House Dems hoped to stand for once in the majority as well. I couldn't get more than a pallid response when I've asked over the last year.

Bill
February 22, 2008 at 06:58 PM
Alma, Heres a dirty little secret - house and senate democratic leaders got on board with the "Bushies" when FISA use was initiated for the "war on terror". And, the only sticking point to the bill right now is that the Democratic leadership wants telecommunications companies to volunteer phone record information (which would expose them to litigation and let the govt off the hook) instead of requiring them to provide those records (thereby inoculating them from litigation). But as you said, "there is no bright line rule". One last thing, I'm not sure about the wireless wiretapping of U.S. Citizens being so new and "wrong".....in the eyes of the courts at least. In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a US citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information. In the United States v. Duggan, the defendants were members of the Irish Republican Army. 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives and firearms. The court held that their compelling considerations of national security in the distinction between the treatment of U.S. citizens and non-resident aliens. In the United States v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the Sixth Amendment. And Finally, In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.� I don't know, maybe it's just me - but if I here a click on my phone while retrieving a nut roll recipe from my Aunt in Slovenia, I'm not going to sweat it.......