Spy, the beloved country

William Kristol and Gary Schmidt offer their take on the "domestic spying" issue.

The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person" -- a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant. Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

There is a balance of issues here. On one side is our civil liberties – the very thing terrorists want to destroy. These will be no less destroyed if we tear them down from the inside. On the other side is preventing another World Trade Center bombing, or worse.

Did the Administration violate the law? It is, at best, unclear.

...the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence -- here and abroad -- as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.)

A careful reading of the Fourth Amendment reveals that a search warrant may not be necessary in order to conduct a search.

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.

The requirement is that an Oath or affirmation be offered before a warrent is issued. The Amendment does not say that no search or seizure will take place without a warrant. And in fact, Findlaw.com has a section on valid searches and seizures without warrants.

It would appear this issue is more red herring than red flag.

However, it does highlight the power of the executive branch, and underscores the need for a good person to run it. It would be nice if this whole flap caused people to re-think their criteria for nominating and electing a President.

A Presidential election should not be a popularity contest, or worse, a beauty contest. Nominees should be selected, and candidates elected, based on criteria other than how they come across on camera. As it stands now, if the best candidate for the job had a bad speech impediment or a serious facial disfigurement, he wouldn't stand a chance of being elected, and that's a shame.