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Bright Line Rule

One class I heard this favorite phrase was Criminal Procedure, where the Fourth, Fifth and Sixth Amendment's interpretation in cases like Terry v. Ohio (the & ldquo;stop and frisk & rdquo; case), and Miranda v. Arizona (the right not to incriminate oneself after the police begin questioning), give character and structure to black-letter Constitutional law.

Add doctrines like & ldquo;special needs, & rdquo; (allowing the suspension of individual suspicion to conduct a search), and keeping the search and seizure laws straight is a mental workout. & For good reasons, these laws don't offer too many bright line rules. &

Which is why I think the current Foreign Intelligence Surveillance Act (FISA) laws are a little funny, by which I mean, they're totally screwy. &


The original 1978 FISA laws ( which Bush asked Congress to alter last year ) were meant to oversee electronic eavesdropping against foreign agents operating inside the United, but that is not all these laws are doing today, thanks to Bush's so-called & ldquo;War on Terror. & rdquo; &

Today, in order to protect the U.S. from Islamic jihad, more American civilians, including those calling from the U.S. to relatives or friends living overseas, should have their phones tapped without a warrant explaining when or who is chosen.

On the one hand, FISA 2.0 (my own moniker) is funny because why would the FBI want to know what I'm saying to my cousin Ramon in Spain when there is no individual suspicion?

Ah, special needs doctrine would say there is an overriding governmental interest in this warrantless wiretap, absent any suspicion of wrongdoing on either end of the call. But here's where FISA gets particularly side-splitting. The special needs doctrine cannot be used to gather general evidence for criminal investigations. Under established criminal case law FISA can't be used to intercept calls unless there is a specific case the government is trying to make, and I gotta tell ya, the & ldquo;War on Terror & rdquo; just isn't specific enough.

It's a rare day when an exception yields a bright line rule, but the FISA rules begged for the boundary. I'll be relieved if the House Democrats continue to stand firm on this one.


-Citizen Voices blogger Alma Sove has spent most of her life in San Diego and is currently attending law school.