I find your understanding of the legal issues to be incomplete at best.
It is widely regarded that the actions previous presidents took in wartime were in excess of their powers and inappropriate (suspending habeas corpus, japanese internment, restricting free speech,...).

It was also held by the U.S. Supreme Court, that -- with the exception of the suspension of habeus corpus, each and every one of these actions were lawful and within the authority of the President. Indeed, this was only because the suspension of habeus is expressly left to Congress, not the President. In fact, in the Prize cases, the Court made no distinction between declared or undeclared wars in this regard. In 1944's Korematsu case, in a ruling with which many are familiar, the Supreme Court upheld the President's Executive Order 9066. The Order forced relocation and internment of Japanese-Americans?as well as their Japanese-national parents who, though resident aliens, were ineligible to become American citizens under then-existing American naturalization law. In 1988, the United States formally apologized and even paid compensation to those affected. Korematsu, however, remains on the book and is good law.

The courts have 1) never definitively affirmed the enemy combatant status (On Padilla,the 4th circuit agreed, the 2nd disagreed, and the Supreme Court has not weighed in yet-but the administration was afraid of their answer so they charged him in Florida on an unrelated crime;

I never said that the court affirmed his status.

On Hamdi, they disagreed strongly),

Not true. In Hamdi, they simply accepted his combatant status for the purpose of the case. They did say that the AUMF constituted an Act of Congress authorizing initital detention.

2) always treated electronic communications as protected by the 4th amendment

There were no "electronic communications" in 1928 when Supreme Court decided the Olmstead case. However, the interception of confederate communications during the Civil War was accepted and no warrant issued. Indeed, the Supreme Court has affirmed the fact that (and ISP's cannot give permission to bypass the courts and listen in on specific conversations-this is not a legal way to gather evidence, to make a suggestion otherwise is absurd), and 3) expressed concern over the known executive branch power grabs before the NSA wiretapping became public.

There are really only 2 reasons they don't use FISA to get court orders for these wiretaps (you can get a roving wiretap, and FISA is a rubber stamp-rejecting only 5 out of 19,000 requests so far).

"roving" taps werent an issue here, that is only an issue once you get a FISA order, and want to track a target from place to place...

First, the reasons for your tap are so outlandish that you can't even try to justify them on a piece of paper.

I agree. Not necessarily outlandish, but likely not up to the probable cause standard within FISA. More trolling than fishing.

Second, you are conducting so many taps that it is impossible for you to make that many requests.

Again, possible. The NYT reported about 500 active requests at any one time. That would represent about a 30 percent increase in FISA taps, which would overwhelm both DOJ's OIPR and FISA court.

The idea that the Executive branch wants to assert its authority in defiance of existing law is a VERY forgiving interpretation that is not consistent with the facts.

Still, they may have been arrogant enough to say that they didnt go to FISA court because they felt they didnt need to.

As far as justifications, it is clear that the administration is intent on taking the courts out of the role of supervising law enforcement,

(and intelligence)
and inserting law enforcement into that role.

This is consistent with their position on things like sentencing guidelines, which allow the prosecutor's judgement to substitute for the courts.

As you should be duty-bound to point out, this has a long history of working out poorly for citizens elsewhere.

Just ask the Church committee.

I am by no means an apoligist for the administration, particularly in this regard. Indded, the DOJ memo justifying this activity is amateurish and poorly reasoned. The main justification seems to be, it is war, and all bets are off. If this is true, then other laws like USA PATRIOT become irrellevant.


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