Yesterday, mcjoan wrote about a U.S. News report to be posted this evening that reveals the Bush administration claimed to have the inherent authority to bust into your house and, to quote Arlen Specter, "do whatever the hell it wants."  It is unclear whether such warrantless invasions of American homes occurred; the article apparently reports that the FBI and others strenuously objected to the administration's claim of plenary authority.  The revelation that President Bush argued he has the authority to storm into our most private and protected environments--and to seize what he wants--is nothing short of breathtakingly shocking. What if those brave dissenters and protectors of the Constitution did not speak up and challenge his theory? What if they were Rubber-Stamp Republicans instead of pillars of conscience? We would be sitting here today, unaware that the President redlined the entire Fourth Amendment out of the Constitution.  

Before the article comes out, I'd like to provide some background for just why the administration's claim is so appalling. Let's look at the text of the Bill of Rights the administration thinks it can unilaterally delete from the Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fourth Amendment jurisprudence holds that the home is practically sacred, and its protection must be fiercely gaurded from government intrusion.  FISA reflects this, even in the context of foreign intelligence gathering.  50 U.S.C.  1821-1829, enacted in 1994, covers physical searches in the national security context. Like with electronic sureillance, the government can search the property of a non-U.S. citizen for up to a year.  Again, there is a process to applying and issuing an order. Critically, Congress also established that FISA shall be exlusive means of conduct foreign intelligence searches.  Simply put, there was a law. And the President conspired to break it. He was thwarted by those with logic and conscience, but that doesn't make his actions any less revolting.  

Expect to hear a lot about "sneak and peek" searches in this upcoming debate. Supporters of the President may try to claim that foreign intelligence searches are the same and don't require a warrant. However, even with sneak and peak searches, the target of the search is eventually notified.  Here, like with electronic surveillance, presumably the President could conduct warrantless searches without ever notifying the target.

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