Shortly after September 11, 2001, our President enacted a scheme that apparently led to spying on Americans without warrants, and outside of the specific procedure for such surveillance established by Congress in a law known as FISA. This program and its history are classified, and so we don't know exactly what kinds of surveillance were conducted. We do know that two years after it began, Department of Justice officials found the program to lack any legal basis and prepared to resign in mass if the administration went ahead with it without reauthorization from the DoJ. (For the sordid details, including the famous appearances by Andrew Card and Alberto Gonzalez at the bedside of a very sick John Ashcroft, see
here.) These were political appointees, all sympathetic with the policy goals of the administration.
In its effort to conduct eavesdropping Bush knew he would not be able to convince even his own supporters was legal, the Administration simply kept its most able lawyers in the dark. As Marty Lederman writes, "As soon as anyone outside the Cheney/Gonzales/Yoo circle saw the legal analysis, they realized it was so extreme and untenable that they would have to resign if the President continued to act in reliance upon it. Goldsmith testified today that the NSA program was 'the biggest legal mess I encountered [at OLC].' In light of the August 2002 Torture opinion, that's really saying something!"
Much has been written about this program, but the issue is simple. Does the President's power under the Constitution extend to prying into the communications of Americans without oversight of any kind from any other organ of our Government? And what does it say about this President that he sought to prevent the airing of dissenting views within his own administration. This is but one way in which this extremely incompetent man has acted as though he is King, and a lousy one at that.
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