WHILE I'M GETTING MY OWN ACT TOGETHER...
I suggest you check out Jeff Medcalf's post on war powers and the NSA wiretapping
:"The Constitution does not limit the President to fighting the enemy abroad, nor require a separate declaration of Congressional intent to fight the enemy in the United States. The President's power is to fight the enemy defined in the declaration of war, wherever that enemy is.
Thus the President has the power to surveil the enemy wherever that enemy is.
The question becomes, who is the enemy? That is answered by the AUMF: "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons".
The Congress explicitly gave the President to power to determine who the enemy is, within the limitation of being connected to 9/11. Since the President decided that this includes al Qaeda, any al Qaeda operative falls within the definition of the enemy even if that operative is a US citizen. The term we're searching for here is "treason", though for the life of me I cannot understand why we aren't charging people such as Padilla, Hamdi and Lindh with exactly that. Hamdi and Lindh, in particular, were captured on the battlefield and the case is a slam dunk (Padilla is a harder case, and a court is going to have to work that one out).
The only valid way to claim that the surveillance is illegal is to claim that the AUMF does not trigger the President's war powers because the AUMF is not a declaration of war. But nowhere in the Constitution is the President's power to make war divided between "real wars" and "so so wars": there is no way to grant the President the power to make war except to declare war. The Constitution does not require that such a declaration contain particular wording, such as "a state of war exists between the United States and [enemy]". So on what grounds, other than claiming that the Constitution is a "living document" and means whatever we want, can anyone claim that AUMF is not a declaration of war? If not, then what is it?"
Jeff has hit the nail on the constitutional head. There is no such legal distinction unless specifically articulated by the Congress in the language of their AUMF
which makes the " not a real war" argument legally specious. And in the case of the 9/11 resolution, the Congress itself declared the terms of the War Powers Act to be satisfied by the AUMF.
International law is even more of a slam dunk than American Constitutional law as IL requires only the de facto
recognition of a " state of armed conflict". We have a de jure
recognition by NATO which has invoked Article IV
, recognizing 9/11 as an act of war for which " an attack against one is an attack against all".
The Bush administration may be politically inept but they are constitutionally correct and their critics are wrong. AUMF trumps FISA. Separation of powers trumps statutes.