Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say.The President may well have constitutional authority to utilize his war powers, but that does not mean that the Congress must be mute in how he executes those powers. As we've seen recently in Hamdan, the Congress has the constitutional authority to regulate the discharge of duties by members of the government, whether they are officers of the Unitary Executive or not. So addressing whether the NSA program violates our 4th Amendment rights isn't the sole question. The question is whether the NSA program violates FISA, which is a constitutional and duly enacted law.
In fact, Senator Specter's bill effectively repeals FISA by amending the exclusivity clause. FISA would just be one of the possible ways to eavesdrop on American citizens on U.S. soil - the other being the executive authority of the President. This plops us right back in the bad old days before FISA, when for decades Presidents of both parties secretly abused their power to eavesdrop on innocent Americans. Political opponents were surveilled, blackmail ensued, and the core of our democracy was threatened. There can be no freedom when the government has the power to secretly invade our privacy because dissent is strangled through intimidation. There will be abuses of this power, because since the times of the bible human nature hasn't changed! The entreaties to "just trust us" are fundamentally unAmerican! As Thomas Jefferson once said, "in questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
If Specter's bill passes, our intelligence apparatus will once again vanish into the black hole of our Unitary Executive. Once again, our vast intelligence resources will turn, in secret, on our own citizens. Such authority, and the power to control it represents, will lose us the Republic.