The Senate, in S.J. Res 23 did put this modifying phrase into the AUMF:

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:

In other words, Congress admits that the CONSTITUTION gives presidents authority to “take action to deter & prevent acts of international terrorism.”

You’ll notice that it doesn’t have language that says a president’s Constitutional powers are limited to the use of military force. It simply says he can take “action” to deter and prevent further terrorist attacks.

And SIGINT is definitely a great way of preventing further terrorist attacks.

He must have thought people would be concerned that he would be acting without any oversight, or he wouldn’t have lied to begin with. He would’ve simply stated that his grave duty to protect the American people requires that he spy on them.

Re: FDR: There was no statute constraining his actions; in fact, there was a declaration of war granting him broad powers over foreign and domestic spheres.

By contrast, there was no declaration of war here and a there was a statute constraining Bush. (reread Hamdi: the AUMF gives him no more and no less than what it says: the power to use military force in a specific conflict. The only way to read the AUMF as OK’ing wiretaps is to construe it as repealing FISA, which is completely untenable. Not only did the Congress expressly not declare war, they also expressly considered changing FISA and declined to do so)

The former was legal, the latter illegal.

He gave that answer when beng asked about wiretapping that was covered by the Patriot Act. And he’s right in stating that they went to the proper courts for the various different warrants that are covered by the Patriot Act.

Let’s suppose, though, that they weren’t talking about warrant requirements of the Patriot Act. Let’s suppose that President Bush was just talking about warrants in general. Would I be upset that a president, whether it’s a Republican or Democrat, had lied about not getting warrants for highly classified, warrantless wiretaps? Absolutely not as long as that wiretapping was being done on international communications.

Let’s also pose another question. We know that part of FDR’s plan during WWII was intercepting international communications between the Nazis and Nazi agents here in the U.S. Did FDR break the law in not getting wiretaps on these communications? By what authority did he do these intercepts? After all, FISA didn’t exist way back then.

Might it have been legal because all wartime presidents had certain wartime powers granted through the Constitution? Is it reasonable to conclude that the President should have extra powers in wartime? If the answer is yes, then isn’t it reasonable to assume that the Founding Fathers wrote those broader powers into the Constitution for just such an instance? If that isn’t reasonable, then why have numerous courts ruled, most recently in the Hamdi case, that the President does have expanded powers in wartime?

You also must like saying things about the law when you don’t know what the law is. It certainly is a lot less work for you, which must be nice.