In the Senate, for example, Ted Stevens (R-AK), the president pro tempore, said in a floor speech on September 14, 2001: "Some people say [the resolution] is a broad change in authorization to the Commander in Chief of this country. It is not. It is a very limited concept." In the House, Jim McGovern (D-MA) agreed, noting that the resolution merely "reiterates the existing constitutional powers of the president to take action to defend the United States, but provides no new or additional grant of powers to the president."

Without a credible legal basis to support him, Bush next sought a rationale to convince the general population that his behavior was acceptable. To do that, he reflexively invoked the lowest common denominator: fear.

THE NEED FOR SPEED—At a press conference two days after details of the domestic spying operation were exposed, Bush was asked why he felt the need to order domestic surveillance operations without obtaining warrants. "This is a different era, different war," he responded. "It's a war where people are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent. I keep saying that. But this is—it requires quick action."

In the parlance of the 1980s macho film Top Gun, Bush was saying "I feel the need . . . the need for speed." And at first glance, it is a seemingly logical argument. Terrorists in the information age can move quickly, and law enforcement needs to be able to move just as quickly. If Bush isn't allowed to break the law, we are asked to believe, then he won't be able to move quickly—and that means we should fear that America isn't being protected from terrorist attacks.

But there's just one problem: law enforcement already has the ability to move as quickly as Bush wants through existing, warrant-requiring legal channels. Put another way, the president's legal obligation to obtain a warrant for domestic spying in no way inhibits the speed with which surveillance operations can be ordered and deployed.

How is that possible? Because domestic spying warrants are granted by secret courts created by the Foreign Intelligence Surveillance Act (FISA). In these FISA courts, the government is permitted to obtain warrants retroactively. The government can immediately order surveillance operations, and then go back and get a warrant, meaning the warrant process never precludes "the need for speed."

And it's not like getting a warrant from a FISA court is difficult. As journalist/blogger Josh Marshall pointed out, the government's own data shows that "in a quarter century, the FISA Court has rejected four [out of more than 15,000] government applications for warrants."

As former Secretary of State Colin Powell said when asked about it on ABC's Nightline, "It didn't seem to me, anyway, that it would have been that hard to go and get the warrants." Powell noted that "even in the case of an emergency, you go and do it [begin surveillance]. The law provides for that. And three days later, you let the court know what you have done, and deal with it that way."

"PAPERWORK" AS AN EXCUSE—With two high-profile swings and misses in trying to explain away the president's law-breaking, the Bush administration trotted out Michael Hayden, who was the director of the NSA when Bush first ordered the domestic surveillance, and who is currently Bush's deputy director of national intelligence. The Washington Post reported that in a press briefing designed to defend the president's refusal to seek FISA court warrants, "Hayden said getting retroactive court approval is inefficient because it 'involves marshaling arguments' and 'looping paperwork around.'"

At last the White House's total disdain for the law was out in the open. Administration officials were saying they simply didn't feel like "marshaling arguments" or doing the "paperwork" that the law requires.

There is much evidence to suggest that the protections of the law are especially needed in the Bush era. Two years ago, the New York Times wrote that the White House was using the FBI to "collect extensive information on the tactics, training and organization of antiwar demonstrators." In July 2005, the Times reported that the FBI had "collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups." And just last month, NBC News obtained a 400-page Pentagon document outlining the Bush administration's surveillance of anti-war groups. The report noted that the administration had monitored 1,500 different events the groups had participated in within just a 10-month period.

LAW-BREAKING AS INFOTAINMENT—The truth is, domestic surveillance operations happen all the time, as they have for years. But they are also governed by the U.S. Constitution's 4th Amendment, which explicitly protects citizens against "unreasonable searches and seizures" and requires the executive branch to obtain a warrant from the judiciary branch in order to conduct surveillance operations.