I Have a Bridge to Sell You.

One of the stories being trotted out to bolster support for the NSA eavesdropping that appears to have been illegally authorized is about saving the Brooklyn Bridge.

Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.

Ohmigod, the Brooklyn Bridge!!!

We'll leave aside the idiocy of trying to take down the Roeblings' monument to 19th Century overengineering with blowtorches. (The folks at Making Light took care of that a long time ago.) As it turns out, this guy wasn't on the verge of making an attempt, he was merely checking out the idea.

So it seems like the Feds would have had plenty of time to take this case before the Foreign Intelligence Surveillance Act court, if they cared about obeying the will of the people's elected representatives in Congress. And, as DOJ statistics show, the FISA court is in the business of approving such requests. So it wouldn't have been a big risk to the operation.

"But, but," sputter the Bushian dead-enders, "what if he had been about to stage an attack!? We can't wait around for bureaucratic nuisances like warrants!" Well, it turns out that, in such situations, they don't have to! The FISA law anticipates urgent needs! How about that?!

(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

1. an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
2. the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

There is, in clear black-and-white, a procedure for the President to use if he needs to act in a hurry, while upholding the rule of law.

Instead, they chose to employ a legal justification provided by a young underling, based on a broad reading of the term "Commander-in-Chief", blurring the meaning of "wartime" and employing legal reasoning that has been rejected since before the Revolution.

Black-letter law, or theory dreamt up by some guys you hired. Which would you choose if you were serious about your oath to "protect and defend the Constitution of the United States."?