Under strong questioning from Senator Feinstein this afternoon (A- is my grade for her performance) Alito reiterated his suggestion of this morning to Leahy that Bush can order spying on Americans without a warrant. He got there by noting that the 4th Amendment allows warrantless searches under some circumstances and that the FISA law, in his estimation, may not require a warrant in all circumstances. (Dick Cheney, the remaining neo-cons, and he are probably the only people who interpret FISA this way). Even if FISA does require a warrant, he suggested the post-9/11 Congressional use of force resolution may have given Bush authority to order warrantless spying. The nominee did not answer the question conclusively — he still appears to have his wits about him, despite what must be a grueling day — but what he said supports the suspicion his expansive view of Executive power was a primary reason for his nomination. There is widespread opposition to warrantless spying on Americans. This may be a break issue for some Senators.
