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In the wake of the twin revelations about the National Security Agency's dragnet of phone calls and online activity, polling suggests that a majority of Americans apparently remain comfortable with their civil liberties being compromised in the cause of preventing terror attacks.  Probably just as predictable, a survey from Pew Research showed a fair amount of partisan hypocrisy, as Democratic and Republican opinions of NSA domestic surveillance changed dramatically from 2006 to 2013 when George W. Bush was replaced by Barack Obama in the White House.

But largely overlooked in the conventional wisdom is a vital point. That is, while the Obama administration's regime of NSA electronic surveillance of Americans may or not be illegal, there is little question that President Bush's warrantless wiretapping broke the law.

Writing in Salon, David Sirota implored Americans not to take the legality of the PRISM and Verizon programs for granted. Meanwhile in the New Republic, Robert Chesney and Benjamin Wittes cautioned that the government's appropriation of telecomm metadata in the Verizon case may be worrisome and legally suspect.  But on Capitol Hill, Democratic whip Steny Hoyer (D-MD) made a different point:

"The difference between this program and the Bush program [is that] the Bush program was not sanctioned by law; this is pursuant to law," Hoyer told reporters in the Capitol. "I think that's a very important distinction that some people don't draw, but they ought to draw."
Hoyer is at least half right.

For its part, Pew Research ("Majority Views NSA Phone Tracking as Acceptable Anti-terror Tactic") acknowledged that there were differences between its 2006 and 2013 surveys, but did not raise the question of the legality of the programs in question:

The survey finds that while there are apparent differences between the NSA surveillance programs under the Bush and Obama administrations, overall public reactions to both incidents are similar. Currently, 56% say it is acceptable that the NSA "has been getting secret court orders to track telephone calls of millions of Americans in an effort to investigate terrorism."

In January 2006, a few weeks after initial new reports of the Bush administration's surveillance program, 51% said it was acceptable for the NSA to investigate "people suspected of involvement with terrorism by secretly listening in on telephone calls and reading e-mails between some people in the United States and other countries, without first getting court approval to do so."

Continue reading below the fold.

As the Washington Post's Timothy Lee suggested in "How Congress unknowingly legalized PRISM in 2007," the real scandal today may be that some or all of the Obama administration's actions are legal. Between them, the Protect America Act of 2007 and the FISA Amendments Act of 2008 codified the Bush administration's earlier domestic surveillance while granting retroactive immunity to telecommunications providers like Verizon. As Bush himself acknowledged in his memoir, Decision Points:

The legislation effectively ended the debate over the legality of our surveillance activities. Congress had shown bipartisan support for a law that provided even more flexibility than we had under the Terrorist Surveillance Program.
But as federal Judge Vaughan Walker ruled in 2010, there should be little doubt that the President Bush's warrantless wiretapping was against the law. After all, it wasn't just constitutional scholars arguing that the Commanded-in-Chief's Article II war powers or the 2001 Authorization for the Use of Military Force did not allow the President to ignore the Foreign Intelligence Surveillance Act (FISA). As it turned out, in March 2004 Acting Attorney General James Comey and FBI Director Robert Mueller threatened to resign if President Bush reauthorized a program they considered illegal without changes they demanded.

President Bush was blissfully unaware of the looming resignations which almost resulted from that now infamous episode which occurred in the hospital room of a gravely ill John Ashcroft. Of course, the American people didn't learn about the existence of the NSA domestic spying program until December 2005, more than a year after George W. Bush narrowly secured reelection over Democrat John Kerry. Voters would have known sooner, but as the Times' Eric Lichtblau later revealed, "For 13 long months, we'd held off on publicizing one of the Bush administration's biggest secrets."

On Tuesday, the ACLU announced it was filing a lawsuit challenging the constitutionality of the NSA phone spying program, claiming violations of its First and Fourth Amendment rights as a Verizon customer. Whether Hoyer or the ACLU is right about legality of the NSA programs will doubtless take months or years to decide (assuming the courts don't dismiss the cases on the grounds the litigation would compromise "national security secrets"). As for those wondering why Democrats are so much supportive now, it's worth remembering that it's not merely a matter a having their guy in the White House. Before 2007, the domestic surveillance by the Bush administration was against the law.

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