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Congressional Authority for National Security Surveillance: Impediments and Legal Challenges

This text analyzes the impediments and legal challenges related to FISA warrants for the screening of international phone calls. It examines the claims of the president and the American Civil Liberties Union, addresses the standing problem, discusses potential damages, and explores the issue of redressability. Furthermore, it delves into the court's holding and the implications of the FISA Amendments Act of 2008.

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Congressional Authority for National Security Surveillance: Impediments and Legal Challenges

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  1. Chapter 19 - Congressional Authority for National Security Surveillance Part III

  2. NSA screening of International Phone Calls • Is pattern matching on electronic communications "reading the content"? • What are the impediments to getting FISA warrants for this screening? • Did FISA provide for area warrants? • Did FISA contemplate individual warrants for given individuals? • Could the government just put everyone on notice that foreign calls may be screened and eliminate the expectation of privacy?

  3. Letter from William E. Moschella • Does the president claim intrinsic authority for national security searches, outside the 4th amendment and congressional authorization? • What statutory support does the president claim for the phone surveillance? • What exception from FISA does the president claim is satisfied by this authority? • Is this an unambiguous reading of both laws?

  4. American Civil Liberties Union v. National Sec. Agency, 493 F.3d 644 (6th Cir 2007)  • Who are the plaintiffs? • What are the complaining that the NSA is doing illegally? • What provision of FISA seems to ban intercepting communications without a warrant?

  5. The Standing Problem • Can any of the plaintiffs show that their calls have been intercepted? • Can anyone show this? • What would be required for this showing? • Why is that not going to happen? • Is this showing essential for standing? • Why isn't it necessary for a declaratory judgment that the agency is acting illegally?

  6. What are the Damages? • What do plaintiffs argue is their damages? • Are they arguing that they are worried they will be arrested? • Even if true, why would you not bring it up? • What might damages be for an attorney with an overseas client? • Is this more than just invasion of privacy? • Do they have an alternatives to avoid interception of their messages?

  7. Redressablity • What is redressablity? • Would they know if there was a proper warrant? • Think about plaintiffs' arguments about what they are worried about • Would any of their concerns be different if the search was based on a warrant? • Since they could not know if there was a warrant, would they be able to behave differently if the NSA said it would obey FISA?

  8. The Court's Holding • Why did the court find that none of the plaintiffs had standing? • Could anyone get standing under this analysis? • Who would be the right party to bring an action? • Why is this unlikely? • Why did this make the telcom company immunity for complying such an important issue?

  9. FISA Amendments Act of 2008 • Does Section 702 create an area warrant for interception of communications originating outside the US? • Why does the Act have provisions allowing the communications companies to contest these warrants in court? • Why is there a provision granting the communications companies immunity from complying with these orders?

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