In the above link, the Attorney General has provided us with a legal memorandum that explains the authority Bush had to authorize the intercepts of communications between Al Qaida operatives. The best part of the argument starts at page 17 of this pdf document in case you want to skip all of the fluff lead in.
I can agree with the reasoning in this matter based on their analysis. If so, then the release of this information by the NYT is the greatest act of treason that has ever been committed. Although why anyone thinks that the Al Qaida operatives will still be using electronic means to communicate that can be intercepted is beyond me, therefore the program has no useful value at this time.
The argument made is at least credible. If we are to look at NSA intercepting communications between Al Qaida operatives who are both outside of the country, that is fully authorized. As Bush said before in his defense of his actions, at least one of the parties being intercepted had to be outside of the country. Therefore removing from the argument internal communications from being intercepted. The presence of someone who is communicating with Al Qaida in this country should not be exempted from intercepts because of a misguided sense of a legal technicality. I think that it was Lincoln who said that the Constitution is not a suicide pact. Al Qaida should not be allowed to use the protections of the Constitution to hide their actions. Reasonable steps to prevent attacks that include the interception of communications from overseas (or Canada or Mexico for that matter) must be an inherent part of the President's authority to make war that Congress has authorized.
So, as Commmander in Chief during time of war, taking the steps to protect the nation from attack, he would be authorized by the Authorization for the Use of Military Force. The fact that he continued to review it on a regular basis plus inform the members of Congress only adds more credence to the interpretation of the President's powers.
Now, let's say that Congress finds that they did not mean for the President to listen in on terrorists that are in this country. They could pass a law clarifying that any Al Qaida that are present on our shores are exempt from surveillance absent a FISA court approved court order. After all, we wouldn't want to falsely investigate someone who is totally innocent and wrongfully accused. Of course we also wouldn't want to allow Al Qaida to plot undeterred from their next big operation either. So how do we resolve the dilemna? Let's look at the maiximum harm of the two cases cited above. If the person is wholly innocent, they could suffer from a certain level of embarassment, since any illegal activities would be excluded from prosecution. On the other hand, failure to intercept intel related to a terror attack could result in one that makes 9-11 look like a picnic.
So, what are we to do? I am sure that Congress will either have to validate the President's authority, or say that Al Qaida is to be allowed free reign to conduct their actions against us.
People always say that Bush is dumb. Seems to me that he keeps putting his opponents who are in a moral rage into a very tight box that they cannot extricat themselves from.