Bush’s eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams.
We can decide as a society that we need to revisit FISA. We can debate the relative merits of police-state surveillance tactics and counterterrorism. We can discuss the prohibitions against spying on American citizens without a warrant, crossing over that abyss that Church warned us about twenty years ago. But the president can’t simply decide that the law doesn’t apply to him.
This issue is not about terrorism. It’s not about intelligence gathering. It’s about the executive branch of the United States ignoring a law, passed by the legislative branch and signed by President Jimmy Carter: a law that directs the judicial branch to monitor eavesdropping on Americans in national security investigations.
It’s not the spying, it’s the illegality.
Personally, I think it’s the illegality and the spying, but in the name of keeping the debate clear I’m happy to keep the two arguments separate.