Noted previously,
this:
The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.
. . . But the Bush administration regards the N.S.A.'s ability to trace and analyze large volumes of data as critical to its expanded mission to detect terrorist plots before they can be carried out, officials familiar with the program say. Administration officials maintain that the system set up by Congress in 1978 under the Foreign Intelligence Surveillance Act does not give them the speed and flexibility to respond fully to terrorist threats at home.
It is now claimed that the President has the power, by virtue of the AUMF and Article II of the Constitution, to bypass FISA, a law duly enacted by the Congress, and engage in the warrantless domestic electronic surveillance described above. And the claim is based on the occurrence of new events - the War on Terror. Although it was well known that such power was withheld by the Patriot Act, and although the President, whose specific requests for other authority were in the main granted by Congress, never suggested that in view of the new events he needed the power to bypass FISA, which Congress in its judgment had decided to withhold from him. The utmost that the War on Terror may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.
Sound familiar? Justice Frankfurter used virtually these identical words in opining that President Truman's seizure of steel mills during the Korean War through invocation of a Congressional act and Article II of the Constitution was an infringement upon the Constitutional authority of the Congress.
Justice Frankfurter said:
A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments.
Judge Richard Posner, of the Seventh Circuit Court of Appeals, said:
Democracies and dictatorships do many of the same things. It's the differences that count.
Apparently, some do envy such governments.