“No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role [of Commander-in-Chief].”
— Justice Robert Jackson
(during the Korean War when President Truman tried to seize the steel companies in the name of national security).
(Quote of the Week at Crisis Papers)
They also have an excellent roundup of some of the best blog posts on the domestic spying scandal, among which I found this:
Had Bush issued his Executive Order on September 12, 2001, as a temporary measure – pending his seeking Congress approval – those circumstances might have supported his call.
Or, had a particularly serious threat of attack compelled Bush to authorize warrantless wiretapping in a particular investigation, before he had time to go to Congress, that too might have been justifiable.
But several years have passed since the broad 2002 Executive Order, and in all that time, Bush has refused to seek legal authority for his action. Yet he can hardly miss the fact that Congress has clearly set rules for presidents in the very situation in which he insists on defying the law.
Bush has given one legal explanation for his actions which borders on the laughable: He claims that implicit in Congress’ authorization of his use of force against the Taliban in Afghanistan, following the 9/11 attack, was an exemption from FISA.
No sane member of Congress believes that the Authorization of Military Force provided such an authorization. No first year law student would mistakenly make such a claim. It is not merely a stretch; it is ludicrous.
In acting here without Congressional approval, Bush has underlined that his Presidency is unchecked – in his and his attorneys’ view, utterly beyond the law.
— John Dean, “George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably; Both Claimed That a President May Violate Congress’ Laws to Protect National Security”