[Alex]

Glen Reynolds had an interesting post on his blog today (he's a law professor with some familiarity on these issues), commenting that while he finds the wiretapping odious it may not have been illegal:

It's also worth noting that there are two distinct issues here: Whether the wiretapping (or other interception) was legal, and whether the leak was legal. The leak almost certainly violated the law. The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveilliance is, both under statutes and under constitutional law. And that's doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence -- meaning that, as with the exclusionary rule in general, the remedy is worthless if you're never charged with anything, say because you're innocent.) Nor is this a phenomenon that can be blamed on the Patriot Act or the Bush Administration, particularly -- the protections are just quite limited indeed, and prone to technical parsing on such questions as whether the communications were "stored," even momentarily, en route. (For a non-FISA example of that kind of parsing, read the Steve Jackson Games opinion from 1994, long before the Patriot Act). You may find these legal interpretations offensive -- I do -- but they're the law as it is.
And this observation seems to be correct: "What is clear is that this is not some Watergate-type rogue operation, as seemingly hoped by some. In addition to repeated congressional notification, the program has been heavily lawyered by multiple agencies, including the Department of Justice and NSA and White House, and is regularly reviewed. Attorney General Alberto Gonzales and Secretary of State Condi Rice have both insisted that program is legal. The fact that some might disagree with whatever legal advice and conclusions the president has received does not make them right or the program illegal. But at this point, we, the public, don't really know what these news stories are really about, do we?"

(I also like it because he raises the same point I already did in the other thread, a lot of what the government can do is only limited if they try to use it in court, if they don't care about going to court there isn't much prohibition.)