could anyone claim Presidential or telecom good faith? 92 -- I think the issue preclusion/estoppel, as between gov (which intervened in the existing suits IIRC) and the telecoms, is going to be hard to get around. If gov is going in under the civil suits and telling the courts the telecoms were, in essence, acting without mens rea, it's going to be hard for gov to come in a criminal suit and take a different position. 189 -- I have many and varied thoughs and on all that *g* and it's probably too much to try to get into here when I have to get back to work, but Truoung IIRC was not a US citizen and some of the surveillance was "foreign grounds" embassy based wasn't it? In any event, old FISA was a very careful statute that, I agree, was crafted to try to be a safe harbor based on existing case law. If you read it carefully, it really didn't even "allow" for the FISC to issue orders for situations involving agent of foreign power to agent of foreign power communications and I think this was done with purpose. Since the few S.Ct cases did mention that there was an Executive branch power to engage in warrantless surveillance of agents of foreign power for national security purposes (I believe the statute's language there is lifted from the case footnotes but I'd have to go look), then you would have a big separations issue for Congress to write