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If you listened to what few news reports there are about the FISA Amendments Act of 2007, you might be forgiven for thinking that the bill concerns electronic surveillance.

You’d be wrong.

You need to read the whole bill, but you especially need to read Section 107:

SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.—Section 303 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1823) is amended—

…

(2) by amending subsection (e) to read as follows:

“(e)(1) Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of a physical search if the Attorney General—
“(A) determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;

“(B) determines that the factual basis for issuance of an order under this title to approve such physical search exists;

“(C) informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ emergency physical search; and

“(D) makes an application in accordance with this title to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 168 hours after the Attorney General authorizes such physical search.

“(2) If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.

“(3) In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 168 hours from the time of authorization by the Attorney General, whichever is earliest.

“(4) A denial of the application made under this subsection may be reviewed as provided in section 103.

“(5) (A) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
B) The Attorney General shall assess compliance with the requirements of subparagraph (A).”.

Do you see it?

To start with, 50 U.S.C. 1823 is a section of the U.S. legal code under Subchapter II of Chapter 36. Subchapter II regards Physical Searches. Go check. The very title of Subchapter II is “Physical Searches.” Then, of course, there’s the title of Section 107, which reads, “Amendments for Physical Searches.” We’re not just talking about wiretapping phones anymore. We’re talking about the power of the U.S. Government to engage in physical searches of your workplace, your home, your car, anything you own. The definition of “physical search” in 50 U.S.C. Subchapter II is:

“Physical search” means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…

And how are physical searches to be governed?

1. The Attorney General can authorize a physical search if, in his or her determination, there’s an emergency need for a physical search.

2. The Attorney General needs to apply to a court after the fact for approval of that emergency search.

3. If after-the-fact approval of that search is denied because the search was inappropriate, any information obtained can’t be used as evidence or otherwise disclosed, unless…

4. Unless the Attorney General decides that the information “indicates a threat of death or serious bodily harm.”

5. And the Attorney General is in charge of determining whether the law is being followed in this regard.

These are searches without warrants, checked later by a FISA court but in an effectively non-binding manner. Even if you trust the FISA court, which is constituted of judges inclined to give government the benefit of the doubt, it doesn’t matter what the FISA court decides, because if the Attorney General decides the information he gets pertains to a “threat,” she or he can use it even if the FISA court says the search to obtain it was inappropriate. And the Attorney General gets to decide whether the Attorney General has been following the law. Gee, how do you think that’s going to turn out?

To boil it down to a one-sentence conclusion, Section 107 of the FISA Amendments Act of 2007 enables the Attorney General to order physical searches of anyone’s property or possessions without a warrant or accountability, at the whim of the Attorney General. That’s a frightening prospect.

The Fourth Amendment to the United States Constitution reads:

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.

Section 107 of the FISA Amendments Act of 2007 is unconstitutional. It is a violation of individual liberty by brute-force government power. I used to have faith that such a clearly unconstitutional law would be tossed out by the Supreme Court. But Bush has stacked the Supreme Court, and the Democrats have let him do it. And now Democrats like Senator Jay Rockefeller and Majority Leader Harry Reid are helping the Republicans pass this bill. There are still members of Congress with a conscience, but they’re a minority. The rest are bending with what they perceive to be the political wind.

I hope this post demonstrates to you a part of why the FISA Amendments Act of 2007 is so dangerous. I hope it moves you into action. The only thing I can imagine happening to stop this bill from becoming law is for enough people to raise a ruckus so that the political winds blow these limp noodles called “moderates” back into the position of fulfilling their oaths of office to “support and defend the Constitution of the United States.” Call your Senators. Write a letter into your newspaper. Stick signs up around town to call a meeting of the concerned. Stick your head out the window and scream about it. Act.