2 law professors: Obama "has seemingly forgotten the constitutional law he once taught."

[JDPriestly]

58. Duggan concerned the admissibility of evidence in a court in a case

in which a crime had been committed: the export of equipment to the Irish Republican Army. It was decided by the 2nd Court of Appeal in 1984 and is not fully relevant to the issue facing the American people today.

After Hanratty was introduced to Megahey, the government obtained from a judge of the United States Foreign Intelligence Surveillance Court ("FISA Court" and, generally, "FISA Judge&quot an order authorizing the FBI to conduct electronic surveillance of Megahey's home telephone. The surveillance was initiated on February 10, 1982, continued pursuant to a renewal order obtained on May 6, 1982, and terminated on June 21, 1982, the date of Megahey's arrest by the FBI. The wiretap intercepted several conversations between Megahey and Duggan concerning PIRA activities, and information from the wiretap led the FBI to conduct surveillance of the home of Eamon Meehan.

. . . .

http://scholar.google.com/scholar_case?case=12445013106107609695&hl=en&as_sdt=2&as_vis=1&oi=scholarr

The case challenged the constitutionality of the FISA law based on the Fourth Amendment, due process and the deprivation of equal protection to foreign nationals.

That case concerned FISA warrants issued on very specific grounds in the context of a criminal case.

There is no problem with that kind of a FISA warrant. The problem that we are concerned about is the practice of collecting and storing of the megadata on all calls and electronic communications that connect Americans to the world beyond our national borders.

The issue we face now was not dealt with in Duggan.

The Court in Duggan quoted the statutory limits on the FISA court at that time. Either the statute has been amended to allow the collection of all kinds of irrelevant materials or it is being violated.

I do not think that the cases that have been decided thus far deal with the issues presented by the massive surveillance that I understand to be in progress now.

Constitutional challenges can be based on the manner in which a law that is constitutional in some situations is being or has been applied. Just because FISA has been found to be constitutional in specific cases in the past does not mean that the broad scope of the FISA warrant that I saw thanks to Snowden would be found to be constitutional. And I suspect it might not be. The law is very complex. And the make-up of a court, the facts of a case and the quality of the lawyers, their research, their writing talents, their presentation and their charm can be result in new law.

Think Roe v. Wade. And that is just one example.