The longer we go into the whole controversy over the NSA surveillance, the less it seems clear that Bush did anything that extraordinary, despite all the huffing and puffing in the press by people like Jonathan Alter alleging that the program was obviously illegal. John Hinderaker at Powerline has a backgrounder on relevant Supreme Court rulings on the issue. But what really convinced me was Hugh Hewitt's interview with Cass Sunstein, a Constitutional law scholar who is a recognized liberal. It's one thing for a conservative like Hinderaker to support the President's actions, but it is particularly notable when a liberal like Sunstein, who is not often favorable towards Bush, thinks that the program is Constitutional under the war powers of the president. Read Sunstein's original post on his blog. Then read Hewitt's interview with Sunstein. Here is an excerpt:

HH: ....First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?

CS: Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.

HH: Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?

CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.

Read the rest of the interview. Hugh Hewitt has long held that individuals who have worked in the Executive Branch (Sunstein worked in DOJ under both Carter and Reagan and Hewitt himself worked there) have a very different perspective on presidential powers than those who don't have such experience. Sunstein's experience working there during the Iranian hostage crisis probably helped to explain some of his perspective on presidential powers. As Hinderaker wrote,

The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.

What is also illuminating is to read Sunstein's assessment of the poor job that the media has done covering this issue.

HH: Do you consider the quality of the media coverage here to be good, bad, or in between?

CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.

HH: Do you think the media simply does not understand? Or are they being purposefully ill-informed in your view?

CS: You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of bipartisan...in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.

Well, it certainly has been difficult for us lay people to disaggregate the hysteria, the partisan jabs, and the general poor information that the media has put out there to try to assess the legality of this program. Hewitt has more on how poorly the media has covered this. I really appreciate the opportunity to read what legal scholars have to say on this issue and I just wish that those who depend on the media for their major source of news and don't get to read blogs would get the same opportunity.