In 2004, Bush said the following (gathered from the White House website):
"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."
But, things change ...:
The president says without apology that he has, and has used, the legal power to order the National Security Agency to conduct electronic eavesdropping on people, including U.S. citizens, within the United States without prior court approval. He said Saturday during a live radio address that his orders to the NSA to eavesdrop domestically were "a vital tool in our war against the terrorists," "critical to saving American lives" and "consistent with U.S. law and the Constitution." The government has long had the power, through proper procedures, to conduct foreign surveillance in this fashion. What makes last week's revelations markedly different is that this power now has been used domestically, in some cases against U.S. citizens, without formal Congressional or judicial approval.
The president's legal position â.. that no law may forbid him from ordering domestic surveillance without a warrant â.. is not explicitly contained in the text of the Constitution, has never before been implied into it by the federal courts, and is nowhere to be found in Congress' most germane legislation on the topic. You might say, as one long ago Supreme Court justice might have put it, that the president's power to wage war in this fashion, without specific constitutional or statutory authority, stems from the discovery by government lawyers of "penumbral emanations" of such power in the Constitution itself. That doesn't mean the power does not somehow exist; it just means that no other branch of government, including the branch that has the job of interpreting the Constitution, has ever stated that it does.
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