Jack Balkin, to use an Atrios word, is shrill:
The passage of the new FISA bill by the Senate and now the House demonstrates that the Democrats stand neither for defending civil liberties nor for checking executive power.
They stand for nothing at all.
I wouldn't quite go that far. The House roll call vote tells us that the final vote is 227-183, with 41 Democrats voting in favor. Two Republicans voted against, about 80% of the Democrats. Vaunted libertarian Ron Paul did not vote for one of the most important votes for libertarians this term. Charming. BTW, this is the administration bill ... the title gives it away. "Protect America Act." Well, that settles things, right?
Slate's summary of the news, including the story of the "Democrats" lacking a spine, suggests what is at stake here -- per a secret ruling* that required a minimum bother (the FISA Court says no less times than a drunk whore), the "problem" is addressed (at least for six months), but various additional powers -- in the midst of the heat of public scorn at Gonzo et. al. -- are supplied. This is better than the CNN link supplied by the post from which I took the opening quotation, which only spoke of "foreign suspects," (a vague term that sounds narrower than it is in this context) ignoring how our own communications are involved as well.
As Balkanization and other notes, this is supplied in a quickie bill on a summer weekend, one that not only has few safeguards, but one barely debated. This is how republican democracy works when Democrats control Congress?! While we should honor their successes, such as a law to carry out 9/11 Commission Recommendations (or rather, most of them) six years after the events covered, they really dropped the ball here. I must dissent from the complete tarring of the party, given that vote count, but the way it was carried out is the fault of the party (and leadership) as a whole.
"Reasonable expectation of privacy" is a central theme when determining the appropriate procedures to follow in the search and seizure area. Ultimately, this is a subjective test that is up the people at large. The failure to limit executive power with proper safeguards ignores the overall spirit and terms of the Fourth Amendment. That is, unless "reasonable" starts to mean something I personally think is blatantly the opposite.
[BTW, GG has an interesting interview with Sen. Dodd attached to yesterday's post on this matter, noting in passing that Dodd is the strongest candidate on the subject of abuse of executive power. I have an idea, other than the fact he has no chance (yeah, that seems establishment of me ... sue me), he is a bit too well establishment, but he isn't a bad choice in some ways. Experience, a generally liberal record (some problems with corporate sponsorship), and a qualified knowledgeable sort. Did vote for the war resolution, but my presumptive favorite, Edwards, did as well. Like E., he now has strongly shifted gears.]
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* Compare this to another common "border search," namely those at airports. We are there when they do it, it is out in the open, and in the process some limitations are present. Likewise, regular courts -- with rulings we can all read -- judge such cases. Yet again, what seems rather ordinary, and not too useful in the scheme of things, starts to seem not only basic but fundamentally necessary.