The Dept of Justice just released a very strong case for Bush’s authority for the NSA monitoring (which we learned has been doing this surveillance for decades)

Myth: The NSA program is illegal.

Reality: The President’s authority to authorize the terrorist surveillance program is firmly based both in his constitutional authority as Commander-in-Chief, and in the Authorization for Use of Military Force (AUMF) passed by Congress after the September 11 attacks.
…
— The AUMF authorized the President to use “all necessary and appropriate military force against those nations, organizations, or persons he determines planned, authorized, committed, or aided in the terrorist attacks that occurred on September 11, 2001.”

— In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the “fundamental incident(s) of waging war.” The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.

— A crucial responsibility of the President-charged by the AUMF and the Constitution-is to identify enemies who attacked us, especially if they are in the United States ready to strike against our Nation.

— We are at war, and al Qaeda is not a conventional enemy. Since the September 11 attacks, it has promised again and again to deliver another, even more devastating attack on America. In the meantime, it has killed hundreds of innocent people around the world through large-scale attacks in Indonesia, Madrid, and London.

— Al Qaeda’s plans include infiltrating our cities and communities and plotting with affiliates abroad to kill innocent Americans.

— The United States must use every tool available, consistent with the Constitution, to prevent and deter another al Qaeda attack, and the President has indicated his intent to do just that.

Any Democrats want to take the opposing position on this one?

Myth: The NSA program is a domestic eavesdropping program used to spy on innocent Americans.

Reality: The NSA program is narrowly focused, aimed only at international calls and targeted at al Qaeda and related groups. Safeguards are in place to protect the civil liberties of ordinary Americans.

— The program only applies to communications where one party is located outside of the United States.

— The NSA terrorist surveillance program described by the President is only focused on members of Al Qaeda and affiliated groups. Communications are only intercepted if there is a reasonable basis to believe that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.

— The program is designed to target a key tactic of al Qaeda: infiltrating foreign agents into the United States and controlling their movements through electronic communications, just as it did leading up to the September 11 attacks.

Any Democrats what to oppose this?

Myth: The NSA activities violate the Fourth Amendment.

Reality: The NSA program is consistent with the Constitution’s protections of civil liberties, including the protections of the Fourth Amendment.

— The Supreme Court has long held that the Fourth Amendment allows warrantless searches where “special needs, beyond the normal need for law enforcement,” exist. Foreign intelligence collection, especially in a time of war when catastrophic attacks have already been launched inside the United States, falls within the special needs context.

— As the Foreign Intelligence Surveillance Court of Review has observed, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.”

Any Democrat want to say we should fight Al Qaeda in front of Judges ONLY?

Myth: The Administration could have used FISA but simply chose not to.

Reality: In the war on terrorism, it is sometimes imperative to detect — reliably, immediately, and without delay — whether an al Qaeda member or affiliate is in contact with someone in the United States. FISA is an extremely valuable tool in the war on terrorism, but it was passed in 1978 and there have been tremendous advances in technology since then.

— The NSA program is an “early warning system” with only one purpose: to detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is a program with a military nature that requires speed and agility.

— The FISA process, by design, moves more slowly. It requires numerous lawyers, the preparation of legal briefs, approval from a Cabinet-level officer, certification from the National Security Advisor or another Senate-confirmed officer, and finally, the approval of an Article III judge. This is a good process for traditional domestic foreign intelligence monitoring, but when even 24 hours can make the difference between success and failure in preventing a terrorist attack, a faster process is needed.

War is waged by the military, not old judges in black robes. Any Democrat want to argue we should sideline the military once the enemy is withing our shores and striking distance?

Poweful stuff. My guess is this is a warning shot to Senate Republicans. And it is a fair warning too. Because we could lose a Rep Senate seat if that is what is required to protect innocent people from attack. I have no problem with that.