Wouldn't any originalist or strict constructionist worth his/her intellectual salt condemn this war from the outset as lacking a Congressional war declaration?  Isn't a War Powers Resolution an affront to the Constitution (strickly construed) in and of itself?

It's completely absurd legal reasoning. Apparently, we're now under some kind of semi-permanent state of martial law. Who knew that's what Congress was authorizing back in 2001.  

The guy's gone over the brink. He's a criminal and a tyrant. Impeach him.

And another thing . . . Rice saying that it's okay to ignore the FISA law because everything is different since 9/11 is reprehensible. 9/11 didn't cancel the constitution, nor did it remove laws from the book.

The terrorists may hate our freedoms, but it's the Bush administration that is taking them away. Impeach all of 'em.

Hopefully it will be the Democrats who will have fun. They get to ask the question. It doesn't even matter what the answer is, it will help the cause of anyone who supports a Nation of Laws. Here's why:

If Alito answers the question it will inspire debate, and will legitimize debate.

If he declines to answer because the matter may come before the Court he legitimizes the debate even more thoroughly. It implies that he believes that there is a constitutional question here that will likely reach the Supreme Court.

Via Billmon:

Citizens of the U.S.S.R. are guaranteed inviolability of the person. No person may be placed under arrest except by decision of a court or with the sanction of a procurator.

The inviolability of the homes of citizens and privacy of correspondence are protected by law.

Constitution of the USSR

December 1936

Re: Lacking a Congressional war declaration:--------------
The completion of the Senate Intelligence Report will be a better guide to evaluate what is and what is not an affront to the Constitution. 
Before & during the Iraq intervention, Representative Ron Paul (TX) explored this issue, contending that a more focused debate in Congress was constitutionally mandated. But I think that a pre-intervention debate would have, predictably, reinforced the majority position that Saddam was a menace to the region, which in turn, would have provided even more elaborated Congressional rationales for regime change. 
All this is an exercise in hindsight, as you know.    

Congress needs to repeal that f*cking piece of crap law. How many corrupt, soul-destroying policies have been based on it? Torture, lawless prison camps, spying on citizens and peace activists, detention of citizens without charges and without trials, the list goes on and on. And no, the Democrats don't get to laugh either. They voted for it too, lest they appear weak as we shuffle gently into totalitarianism. But they, and any moderate Republicans who are left, can still change course.

Read the law.  It doesn't authorize any of what you describe, or anything remotely close.  See, that's the thing about laws...you're supposed to obey the actual language in the statute.  It's not Congress's fault that the White House is making up a rediculous and patently unbelievable interpretation of the law in question.  It's kind of like me claiming the average traffic statute gives me the right to steal your car...

Moreover, the law Matt cites is not the Administration's primary justification for its actions.  That would be White House's radical interpretation of the President's "constitutional authority as commander-in-chief."

I guess we better repeal the constitution.

Just conjecture at this point, but interesting none the less:

"[I]t sounds like Bush's super-secret illegal domestic spying program may be targeting US journalists and that may be why Bush never got it cleared by the court and is worried about it coming forward now.

Think about it.

Bush had the authority to go the court AFTER THE SURVEILLANCE and RETROACTIVELY get the warrant to do surveillance he'd already done. He didn't. The only reason I can come up with for why Bush would NOT go to the court after the fact is because he thought the court would slap him down. The court's greatest concern would likely be spying on US citizens, and an even greater concern would be spying on either members or Congress or the American media. If Bush were spying on American media, he might just lose this retroactive warrant.

Bush says that these were only Americans making phone calls to people with known Al Qaeda ties. That probably knocks out members of Congress, but it very much sounds like US journalists. Who else, other than terror cells, would be talking on a regular basis with people who might have ties to terrorism? American journalists working on stories.

There's more...

SLE

Just on the point on thinking about what has actually been going on...speculation....

They have always been picking out incoming international calls of interest. What's new is wanting to monitor the response to those calls from within the U.S. FISA has been approving this, after learning what they learned in each instance. But FISA always wants to limit it to what they could actually use in court, and they want to get a complete picture of the suspect's life, not to use it in court, but to better figure out what's really going on.  Not that they think they can use that other stuff against them, but that it gives them a better "bead" on it.

My main point is, of course, this is the same kind of thing Hoover's F.B.I. did, and then there were people like Hoover himself who picked out the extraneous unrelated private info. in reports and used it politically, simply because it was so juicy and it was there. And then that kind of culture spreads within the organization, and F.B.I. agents would use private unrelated info. that they have access to as a way to threaten/blackmail a perp or someone they wanted to get to talk, something they would in actuality never use in court.

... and remember we haven't been in a legally declared war since WWII ended.

...and hopefully we can count on Senator Roberts to move things along on the manipulation of intelligence by the Bushies so we can get that report before the year 2525 (or thereabouts).

I really think that this is really an outcome of a culture of back-biting/bickering as much as anything else.

Please explain how avoiding both the courts and Congress is "an outcome of a culture of backbiting/bikering."  How does a partisan atmosphere have any bearing on the Bush administration not obtaining warrants to make their wiretapping legal?  Even if extreme "backbiting/bickering" were somehow a factor -- and who did so much to engender that climate? -- how would that absolve the Bush administration from their Constitutional and otherwise legal responsibilities?

The President had his "A Few Good Men" moment on Saturday in his radio address. After the New York Times revealed that the President had apparently personally authorized the National Security Agency to "spy" on American citizens within the United States, President Bush refused to discuss the whole thing in an interview with Jim Lehrer on Friday, implying that there was nothing to the story. Could a sitting US President authorize a government agency to violate the Fourth Amendment to the U.S. Constitution? Of course not! Don't be ridiculous.

But wait! On Saturday, the President in his radio address reversed course and admitted that he had done just that. Really, he boasted that he had authorized the NSA to spy on citizens domestically. Why? It's simple: because of 9/11. The events of 9/11 fundamentally changed the way the world works and as such made the U.S. a much more dangerous place. As a result, the President needed to do whatever possible, no matter how immoral or potentially illegal, to safeguard America. Would he do it again? Damn straight, he said. Again and again if necessary. Did he violate the law? Doesn't really matter. Are you going to worry about that when terrorists kill thousands of Americans?

Interesting arguments all and something about it seemed familar to me. It hit me this morning. Bush is making the same argument that Jack Nicholson's character makes in the film "A Few Good Men". In that movie, Nicholson plays a colonel at Guantanamo Bay (note the ironic coincidence) who Tom Cruise suspects is responsible for ordering two Marines to violently haze another Marine in a "code red". The actions of the two Marines ends in the death of the Marine they haze and the two are charged with murder. Their excuse? They were just following orders. So Cruise brings Nicholson to the U.S. to the court martial to answer questions about whether or not he ordered the "code red". At first, Nicholson denies it. He dissembles. Santiago, the dead Marine, was weak, he argues, but he had ordered no one to touch him. Nicholson had followed all the correct procedures. It's only after being caught in some discrepencies in his statements, that Nicholson has his famous meltdown. In that speech he argues that because the world is a dangerous place, he has done somethings that others might find unsavory, nay disgusting, but it was all in the name of making America a safer place. Who cares if his orders led to the death of a soldier?! That soldier was weak and making the U.S. unsafe! Don't weep for Santiago, no! In our heart of hearts, we know that we want him on that wall and that we need him on that wall!

This is the exact same argument that Bush is making. Sure he has to do some unsavory, nay even potentially illegal things, but the U.S. is a safer place for it. What will be interesting to see play out is if the American public react to this argument the same way that the audience reacted to Colonel Jessup's speech in the movie. Will the public feel, as we the audience did, that the arrogance of the authority figure to commit an immoral and illegal action outweighs the potential good? Could Jessup have let Santiago go home without ordering the attack that led to his death? Would that have made America less safe? The same moral dillema surrounds the President and his decisions. Could Bush have went to the FISA secret court and gotten permission before wiretapping phones? Would that have made America less safe?

As far as we can tell right now, like Jessup, Bush chose the slightly more expedient and certainly less moral way to operate and that has belied the arrogance of power. The intriguing thing to see play out is whether or not the public will react as the judge did in the film. When Jessup flaunted the laws and the power of the court, the judge showed him that no man, no matter how dangerous the world was, was above the law. Will the institutions of American governance and the people of the United States show the President the same resolve and moral outrage?

By no means am I implying that this absolves Bush or anyone else. I happen to think that the information is highly accessible without a warrant because there hasn't been anything like privacy for over three decades-as a result of Watergate and other scandals, the investigations of which are guided by partisanship as well. No? Those surveillance mechanisms have been in existence for an awfully long time. The technological tools are increasingly more and more sophisticated. 
Vanishingvoter.org has addressed the issue of uncivility during the campaign process. It hasn't absolved either party of it. 
No doubt 9-11 has upped the ante for infringements to privacy. But were they significantly less egregious?  

Thank you Artappraiser,
I would think that each investigative institution has developed its own brand of investigations, some aspects of which are trade secrets. And it would take a systematic study of them in order to discern which tool violates the Constitution. I doubt that this is going to happen.

If you never read It Can't Happen Here by Sinclair Lewis I would suggest it to everyone.

During the Cold War much was justified by the need to fight the "enemy" including the vilification of those who dissented.  

Today in opposing an enemy who "hates our freedoms," who "hates our way of life" Bush will sacrifice both our freedom and way of life.  

I watched the Word Trade Center collapse.  I knew some people who died that day.  I would not like to see it ever happen again. But what is the point of giving up all that we value in the effort?

Didn't even the Clinton administration make claims that the War Powers Act is unconstitutional?

I don't want to rely on "Clinton did it"; I just seem to recall that there are ots of people who think the War Powers Act infringes on the President's operations as Commander-in-Chief. And this is not like the wiretap case, where we seem to be enlisting the justice department in the war effort by eavesdropping on US citizens; the War Powers Act affects the president's ability to command the military. 

I hope everyone will save some outrage for our Congressional "leaders" (I use the term loosely).  We need to be asking them what they knew and when they knew it-- Bush is claiming they were briefed repeatedly on what he was doing.  If this is at all true (given that Bush said it, I realize this is a long shot), we need to hold them accountable as well.  Add it to the list of times since 9/11 that Democrats have knuckled under to the Administration for fear of seeming weak (with a very few notable exceptions, like current guest blogger Sen. Feingold).

I can't believe a journalist would be calling any terrorist.