Imagine if there is evidence critical to a criminal prosecution and the defendant challenges the evidence because it is constitutionally suspect. It could jeopardize any criminal case.

There's never been a criminal case where the defendant was anything but the underdog. The prosecution is always the favorite.

Criminal prosecution is not appropriate.

The Court has slapped down Congress on more than one occasion -- on VAWA, on the CDA, on guns in the schoolyard.

None of us who participated in drafting Section 215 thought it would become so controversial, given that we retained FISA court procedures. Originally the FBI wanted administrative subpoenas so they would not have to go to court to get third-party records, so they could bypass courts and prosecutors. Section 215 was a disappointment for the FBI.

The Court has slapped Congress and treated them worse than an administrative agency.