Exactly two years ago, I dissected the Bush administration's dubious legal justification for its illicit program of NSA domestic surveillance. Then, I argued that the President's twin claims that his constitutional authority as Commander-in-Chief and the 2001 Authorization for the Use of Military Force (AUMF) allowed Bush to operate outside the legal mandate of FISA were specious. As it turns out, Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey apparently agree.
In "The Republicans' Constitutional Crisis," I noted:

From the beginning, the administration's amen corner has aggressive claimed that the 2001 Authorization for the Use of Military Force (AUMF) and the wartime Commander-in-Chief powers give President Bush the statutory and constitutional basis for sidestepping the FISA process for domestic electronic surveillance. But most in the GOP are downright sheepish when it comes to the third argument that logically flows from their first two: FISA itself is unconstitutional. Their trepidation is well founded; as a matter of law and of politics, an attack by Republicans on the constitutionality of the Foreign Intelligence Surveillance Act is bound to fail.

As I documented, only the most extreme Bush supporters such as John Yoo argued that FISA itself was unconstitutional. And sadly for the Bush administration, the overwhelming weight of constitutional opinion is working against them. In a February 13th, 2006 letter, the American Bar Association cautioned President Bush against acting outside of FISA, and urging adoption of its recommendations to ensure the fight against Al Qaeda "is conducted in a manner reflective of the highest American values." On January 9th, 2006, a distinguished, bi-partisan group of American constitutional legal experts and scholars wrote to congressional leaders and strongly rejected the arguments put forth by the Bush administration:

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Fast forward two years and President Bush's DNI and attorney general seemingly agree with that assessment. As Glenn Greenwald details:

In the letter from Chairman Reyes to which McConnell and Mukasey are responding, Reyes pointed out that under the still-existing FISA law, the Government is free to commence surveillance without a warrant where there is no time to obtain one. In response, McConnell and Mukasey wrote:
"You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have elapsed. This assertion reflects a basic misunderstanding about FISA's emergency authorization provisions. Specifically, you assert that the National Security Agency (NSA) or Federal Bureau of Intelligence (FBI) "may begin surveillance immediately" in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest."
Wow, what a blockbuster revelation. Apparently, as it turns out, in the United States it's "illegal" for the Government to eavesdrop on Americans without first complying with the requirements of FISA. Who would have known?

A blockbuster indeed.
All of which makes the Democratic capitulation last August on the FISA revisions in the so-called Protect America Act all the more galling. It wasn't enough that they codified President Bush lawlessness. They not only had the votes to safeguard American civil liberties and prevent the legalization of past Bush White House criminality. On FISA as we knew it before August 5, 2007, Democrats had the law - and public opinion - on their side.