I agree with Andrew Napolitano
Andrew Napolitano, in a L.A. Times op/ed, says:
The 4th Amendment was written in response to the Colonial experience whereby British soldiers wrote their own search warrants, thus literally authorizing themselves to enter the private property of colonists.Hear, hear. Well said. I've been saying the same for years. You want to snoop, get a freakin' warrant!!! No exceptions!!!
The amendment has been uniformly interpreted by the courts to require a warrant by a judge; and judges can only issue search warrants after government agents, under oath, have convinced the judges that it is more likely than not that the things to be seized are evidence of crimes. This standard of proof is called probable cause of crime. It is one of only two instances in which the founders wrote a rule of criminal procedure into the Constitution itself, surely so that no Congress, president or court could tamper with it.
FISA also created the bizarre, constitutionally questionable procedure in which federal agents could appear in front of a secret court and, instead of presenting probable cause of a crime in order to obtain a search warrant, would only need to present probable cause that the target of the warrant was an agent of a foreign government. The foreign government could be friendly or it could wish us ill, but no illegal or even anti-American behavior need be shown. Subsequent amendments to this statute removed the "agency" requirement and demanded only that the target be a person physically present in the U.S. who was not born here and is not an American citizen, whether working for a foreign government or not.
The FISA statute itself significantly -- and, in my opinion, unconstitutionally -- lowered the 4th Amendment bar from probable cause of "crime"to probable cause of "status." However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.
Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution,they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.
Then the Bush administration and Congress went even further. The administration wanted, and Congress has begrudgingly given it, the authority to conduct electronic surveillance of foreigners and Americans without even a FISA warrant -- without any warrant whatsoever. The so-called Protect America Act of 2007, which expired at the end of last week, gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are spied on -- illegally -- in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of unsuspecting Americans' conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.
(FWIW, I disagreed with Napolitano back in the Clinton years on the legal issues of the Elian Gonzales case)