"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."

After all the noise, Congress appears ready to justify the Terrorist Surveillance Program, a.k.a. the warrantless wiretaps. One of the proposed solutions would create something called "umbrella warrants," which would essentially be open-ended permission to the NSA to listen in on phone calls.

Although it's essential that the US listen in on potential terrorist communications, I believe the idea of an umbrella warrant is unconstitutional. An umbrella warrant would not "particularly describe" much of anything, and would not be based on probable cause.

That's OK, because searches don't require warrants, and the vast majority of searches are done without a warrant. The basic Constitutional protection is that all searches must be reasonable. If a warrant is required, then it must fit certain criteria.

Does the US military get warrants every time it intercepts radio communications in Afghanistan or Iraq? What about when it sends spy planes to international waters? For that matter, did Union commanders need warrants to spy on the Confederacy? Of course not. Congress can easily solve the "warrantless wiretapping" problem by allowing the NSA to cooperate with the US military in the course of regular military operations. That is, clarify in the law that if there is an ongoing military operation (like in Afghanistan) and evidence that the enemy communicates with people in the US, then the NSA has the ability to provide signals intelligence for the military so that the military doesn't need to maintain that kind of equipment in the US.

The umbrella warrant is a bad idea. And it will be challenged. I don't think the Democrats are creating a bad law with the intention of having the courts throw it out (so that the Democrats can look tough), but that is always a possibility. Instead it looks more like they made a big deal about the NSA not getting warrants, and ended up painting themselves into a corner. Umbrella warrants look like a face-saving solution. But it's a very bad idea.

UPDATE By the way, if the FISA court were to refuse to issue the first umbrella warrant on these grounds, I would applaud them. A judge is required to sign a warrant so that the judge can review if the warrant is legal. The judge is expected to say "no" once in a while. If the warrant is not legal because it's unconstitutional, then the FISA court most definitely ought to say "no."