Over at TPM, Sen. Jay Rockefeller
goes Viagra-challenged on whether Bush was actually doing anything wrong, by saying "I am neither a technician or an attorney."
And at Political Animal, Kevin Drum gets the same disorder when he says:
Q: Is the NSA program a violation of the Fourth Amendment?
A: That's unclear. The Supreme Court has previously ruled that warrants are required in cases involving purely domestic surveillance, but has punted on the question of whether the same rules apply to domestic surveillance for the purpose of gathering foreign intelligence. A couple of cases during the 60s and 70s suggest that warrantless wiretaps are constitutional if their "primary purpose" is collection of foreign intelligence, but there have been no definitive rulings on this.
But, let's actually look at the Fourth Amendment, Sen. Rockefeller, and Kevin.
"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."
(Emphasis added.)
Now, I'm not a lawyer, nor a techie, but I think I can make some common-sense constitutional
I think it's quite arguable from a common-sense point of view that e-mails would be legally included in "effects." Now, I'm not going to argue this is an absolute; I'll frame it in the light of SCOTUS and inferior court rulings about e-mails sent from workplaces. But personal e-mails from a personal residence? I don't see where it takes either legal or high-tech brains to understand that those would be covered by "effects."
Otherwise, follow-up searches, under warrant, would be analogous to telephone record/conversation searches. Once you get an initial hit, your follow-up warrant for further searches in a conventional case (not FISA, surely) will have some sort of parameters on the bounds of the warrant.
As to claims that there are no case law here, I'll address that with a two-part non-lawyer answer.
First, I don't think case law here should be limited to previous FISA case law. And that goes to the heart of the fact as to their not being any. After all, back in the 1970s, nothing from either Shamrock or Minaret went to trial. In one case against the Weathermen, discussed in "The Puzzle Palace," (see below for link), the government folded its tents when the possibility of disclosure of its domestic operations arose.
So, we go to general case law about warrantless searches and seizures. If Bush's actions are illegal under FISA, we bring in general Fourth Amendment case law and it's clearly unconstitutional to this non-lawyerly civil libertarian. End of syllogism.
Also, Sen. Rockefeller -- trumping the Times by a full year -- I believe your committee has staff, including legal staff. Again, I'm not a lawyer, either, but surely you could ask them a generic question about warrantless searches, and another about entirely inside our borders searches, without discussing any specific activities being conducted.
If not, or if you really think your Senate Intelligence Committee oaths constrain you that much, let me remind you of the oath you take every term as a Senator, to preserve, protect and defend the Constitution of the United States.
(Note: I e-mailed Sen. Feingold last week, when this first broke, since he is going on to the Senate Intelligence Committee, begging him to do exactly this -- spill the beans -- if this continues, or happens again.)
I'd say that trumps any non-disclosure oaths of the Intelligence Committee when push comes to shove.
Finally, I can't recommend enough reading "The Puzzle Palace", by James Bamford. Especially if you're too young to remember the Church Commission, or other mid-1970s investigations of the NSA, this is a must.