This morning, on NPR, David Gergen was talking through the FISA violations. Two relevant points:
• There's not a question whether or not this is legal. It isn't. FISA was passed specifically to constrain executive control and direction of the intelligence services. I know that Cheney (and I guess, Bush) seem to think this unconstitutional, but they never challenged it, they simply ignored it. The president, of course, is duty bound to uphold the law of the land, not reinterpret it to better conform to his personal theories of constitutional power. Had he wanted to repeal FISA, he could've made the case. He didn't. By evading it, he broke the standing law of the land. It's really no more complicated than that.
• All presidents, of course, have expanded their powers, often illegally, during wartime. Lincoln, FDR, and Wilson had a pretty casual attitude towards civil liberties. But we're not at war. Congress has passed no order, there is no Al Qaeda army. By defining it as a war rather than an international law enforcement issue, Bush has cleverly framed himself into an extralegal position, but just because he's framed it thus doesn't make it legal fact. America is chasing down a fragmented guerrilla enemy, not fighting a standing war in Europe. We've had one domestic attack in the last five years. Bush has had more than enough time and breathing room to seek statutory authority and legal definitions, suggesting differently is yet another fatuous attempt too muddle the lawless reality of his actions.