For all its histrionics, the debate was narrow and somewhat vacuous. It is still hard to know if America has not been attacked for the past four years because (1) the Bush administration has waged an effective war on terror or (2) the threat is not as severe as originally thought. The answer may be a bit of both. Likewise, it is unclear whether the eavesdropping has done much to thwart terrorist plots or, on the other hand, whether it has truly robbed Americans of their privacy. Much of the eavesdropping is by a computer searching for key words, not a human being listening to a private conversation.The subject of debate is not histrionics or range of concern. The concerns, in fact, have been almost wholly misplaced, largely because lay people do not understand the legal issues. Fortunately, judges like Mike Luttig ("Judge Luttig also warned that the administration's behavior in the case could jeopardize its credibility before the courts in other terrorism cases.") and James Robertson do understand the issues.
It is little appreciated that Constitutional provisions are so absolute they can never be waived, can never expire, and apply across time, without regard to when the interpretation of them is made. Constitutional law is the provision of governmental power, and if government lacks the power to carry out a task, that task is void ab initio, and without regard to circumstances or the acceptance of the majority. This is the ultimate power behind Roe v. Wade, Brown v. Board of Education, Miranda, Gideon, the school prayer cases. No one can waive a constitutional provision, because that provision is not about any one individual: it is about the law itself.
The question raised by the mushrooming NSA wiretap stories is not: was it effective? The question is: was it permitted? Does the President have this authority? Does the Constitution give him this power?
It isn't a question of expediency. It's a question of law. And, fortunately, we still have some lawyers who understand that.