I think you are missing the point of that law. The law is directed towards the phone companies and tells them that they have to be able to provide interception (tap phones) and call identification (pen registers when the proper authorizaton is presented.

It doesn't change the fact that you don't need a warrant for pen registers. For that proper authorization is simply asking for it by law enforcement. The law is just telling phone companies that they have to have technology that lets you tap and that lets you collect a pen register.

And I think you're missing the point, that law enforcement doesn't have the authority to request those records for people who are NOT suspected of wrong doing and creating the largest data base to ever exist with the info.

I found this online regarding Judicial Review. The first case has already been discussed in the thread, i.e., Marbury v Madison, which established the concept of Judicial Review (in 1801). However, what I think is important is the first case in which this concept was applied to the Executive Branch. This makes it clear that Judicial Review encompasses not only actions of the US Congress, but also those of the President of United States. The other important issue is that President Adams was reprimanded during a time of war.

Many people know the first Supreme Court decision to declare an act of Congress unconstitutional (It's Marbury, of course), but few people could identify the Court's first decision declaring Executive Branch action to be unconstitutional. Little v Barreme (1804), called the Flying Fish case, involved an order by President John Adams, issued in 1799 during our brief war with France, authorizing the Navy to seize ships bound for French ports. The president's order was inconsistent with an act of Congress declaring the government to have no such authorization. After a Navy Captain in December 1799 seized the Danish vessel, the Flying Fish, pursuant to Adams's order, the owners of the ship sued the captain for trespass in U. S. maritime court. On appeal, C. J. Marshall rejected the captain's argument that he could not be sued because he was just following presidential orders. The Court noted that commanders "act at their own peril" when they obey invalid orders--and the president's order was outside of his powers, given the congressional action.


So, there are two questions one has to consider here:

1.) Where has it been established that the President of the United States has the authority to usurp the laws passed by the US Congress, ad hoc?

2.) Doesn't Judicial Review make it clear that the President of the United States lacks the supreme authority to create new policies, which contradict "acts of Congress"? As some have pointed out, if the US Congress had not passed the FISA law, Bush would be in the clear, however...

Also, the Executive Branch is not equal in its ability to legislate and pass laws which govern the behavior of all branches of government, and the American people, for that matter; that power is soley vested in the US Congress. The reason for this is because the founders wanted those laws to reflect the true will of the American people.

Therefore, the fact that the president created his own law is problematic. It's specifically problematic when the issue has been clearly adddressed by an "act of Congress".

__________________
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I wrote to both of our senators on this matter....here is the canned, 'tow the party line' reponse that I received. It contains some interesting information that I was not aware of.

I like this part....

"It is my belief that the NSA program is narrowly focused, aimed only at international calls and targeted at terrorists. The program only applies to communications where one party is located outside of the United States. Communications are only intercepted if there is a reasonable basis to believe that one party to the communication is a member of or affiliated with al Qaeda. "

I guess "Rick" didn't read either the NYT or USA Today articles.

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My point was just that the law you were citing did not say what you thought it did. You want the law on what the government needs to do to satifsy the fourth amendment with respect to collecting phone records see Smith v. Maryland.