Respecting the national security warrant issue, some reference is made of a Congressional Research Service report on the matter. Many locations, however, do not provide a link. CRS reports generally are not publicly released though the Federation of American Scientists (and Secrecy News) does provide links to many of them. A useful service.
The immediate report (there is a second one) at issue is Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information. Its final analysis is that the President's claims are dubious.
Some excerpts might usefully clarify some issues. First, how the Supreme Court dealt with domestic surveillance in the early 1970s:
The Court expressed no opinion as to "the issues which may be involved with respect to activities of foreign powers or their agents," but invited Congress to establish statutory guidelines. Thus, at least insofar as domestic surveillance is concerned, the Court has recognized that Congress has a role in establishing rules in matters that touch on national security.
[per the report linked below: "And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States Dist. Court [1972]."]
FISA and its purposes:
The Foreign Intelligence Surveillance Act of 1978 (FISA) sought to strike a balance between national security interests and civil liberties. The legislation was a response both to the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (hereinafter the Church Committee) revelations of past abuses of electronic surveillance for national security purposes and to the somewhat uncertain state of the law on the issue. The Church Committee found that every President since Franklin D. Roosevelt had both asserted the authority to authorize warrantless electronic surveillance and had utilized that authority. Concerns over abuses of such authority provided impetus to the passage of the legislation.
[Past abuses, privacy and First Amendment concerns are addressed, as well as the need to cabin open-ended executive power that in the past led to domestic abuses in this area. Cf. This ridicule of the legislation, which fails to cite its background.]
The legislation clearly applied to "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States."
As to wartime:
Where Congress has passed a declaration of war, 50 U.S.C. § 1811 authorizes the Attorney General to conduct electronic surveillance without a court order for fifteen calendar days following a declaration of war by Congress. This provision does not appear to apply to the AUMF, as that does not constitute a congressional declaration of war.
[And, even if it did, there is that 15d limit. The use of a "force" provision is telling though: "war" kicks in various statutory powers given to the executive only during "wartime." There are various degrees of congressional authorization. This is why references to let's say WWII is not always appropriate.]
On the issue of so-called inherent presidential power over this issue:
The passage of FISA and the inclusion of such exclusivity language reflects Congress's view of its authority to cabin the President's use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence.
[Also referenced is Scalia's comment in the Hamdi case that issues of interrogation and other intel collection matters is not the baliwick of the courts, but clearly a matter of legislative concern. Furthermore, the limit of the case -- except for Thomas' solo dissent -- to battlefield capture, not domestic activities. Even in the broadest sense, AUMF would not cover all terrorists, but only those involved in the 9/11 attacks.]
A conclusionary summary:
By including the emergency authorization for electronic surveillance without a court order for fifteen days following a declaration of war, Congress seems clearly to have contemplated that FISA would continue to operate during war, although such conditions might necessitate amendments. Amendments to FISA in the USA PATRIOT Act and subsequent legislation further demonstrate Congress's willingness to make adjustments. The history of Congress's active involvement in regulating electronic surveillance within the United States leaves little room for arguing that Congress has accepted by acquiescence the NSA.
Others, such as this bipartisan group of legal scholars,* have spelled out the problems as well with even more force. But the CRS' dubiousness is especially telling.
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* The likes of Richard Epstein joins the club that included the former assistant attorney general of the Reagan Administration who testified at Rep. Conyers' "hearing," Bob Barr who joined Al Gore, Christopher Hitchens (supported Iraq War and Bush re-election, though weird to watch him last night on an old Booknotes stating his hero is Gore Vidal) who signed on the latest lawsuit involving domestic spying, and so forth to suggest -- allegations elsewhere notwithstanding -- this is not just an "Democratic" or "anti-Bush" effort [as the person noted to be respecting the judicial nomination wars, "but it appears that way ..." yeah, if you f-ing ignore the context etc.]
Anyway, I find it sad that the default now is trusting (comments) great exercises of executive power when once upon a time many were more jealous of their liberties and distrusting of unbridled power. Such is the state we are in.