Posted by Orin Kerr:
More Support for the Anticipatory Warrant Theory:
http://volokh.com/archives/archive_2007_01_14-2007_01_20.shtml#1169188261
The latest news on the FISA Court's "innovative" approach to issuing
FISA warrants seems to me to reinforce my guess that the FISA Court
has begun issuing anticipatory warrants. The [1]New York Times
reports: " A Congressional official who has been briefed on the new
procedures called it a hybrid of individual warrants and broader
approval." And the [2]Washington Post says that "Four other people who
have been briefed on the program, who spoke on the condition of
anonymity because the program is classified, described it as a hybrid
effort that includes both individual warrants and the authority for
eavesdropping on more broadly defined groups of people." (Hat tip:
[3]JaO)
This is exactly what you would expect with anticipatory warrants. In
these circumstances, the FISC judges would have issued warrants
authorizing DOJ to monitor in specific classes of cases in which the
FISC judges believe probable cause will exist. In some cases, the
trigger of the anticipatory warrant will be general, involving
eavesdropping on a broadly defined group. In other cases, it will be
very specific, making the warrant quite individualized. Thus the
warrants will act as "hybrids" between traditional warrants and orders
allowing more blanket monitoring.
References
1.
http://www.nytimes.com/2007/01/19/washington/19justice.html?ex=157680000&en=83038aabc33da571&ei=5124&partner=permalink&exprod=permalink
2.
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/18/AR2007011800113.html
3. http://volokh.com/posts/1169093067.shtml#179561
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