The starting point for any discussion of the illegal eavesdropping program should be the fact that the United States has had a law in place for almost 30 years now which makes it a criminal offense -- punishable by 5 years in prison and a $10,000 fine -- to eavesdrop on Americans without judicial approval and oversight. And everyone, including the Bush administration, acknowledges that they are doing exactly what the criminal prohibits -- that is, eavesdropping on Americans without the warrants required by that law.
As A.L. notes, the President has claimed that the program can only continue if it is reauthorized every 45 days, including by Justice Department lawyers who are required -- every 45 days -- to certify that there the program continues to be legally authorized. But even from the administration's perspective -- assuming that they actually do recognize their obligation to abide by the Supreme Court's ruling -- there are no remaining legal theories which can claim to bestow unto the President the power to violate FISA by eavesdropping on Americans without warrants. Thus, no administration lawyer could now certify this program as legal.
But my and Senator Feingold's view is not unanimous. Some constitutional scholars and lower court opinions support the president's argument that he has inherent authority to go outside the bounds of the law in monitoring the activities of suspected terrorists. The question is whether the president understood the law and knowingly flaunted it, or whether he and his aides, in good faith, interpreted their authority more broadly than I and others believe the law allows. Ultimately, this debate must be resolved by the courts.
The administration's theories to justify the President's lawbreaking have always been frivolous. But for those pretending not to recognize that fact, the Supreme Court has so ruled.