The most recent post discusses this piece of ex post facto justification by Richard Posner in the Washington Post.
Marty Lederman writes,
Here's the most chilling line in Posner's column, taking euphemism to a new level: "It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives." That's Posner's kinder, gentler way of saying "It is no surprise that current federal laws, which unwisely criminalize this conduct, are being circumvented by the President's authorization to commit felonies."Here's the Posnerian line, the one we're going to see popping up throughout the rightwing: "if you're not a terrorist, you have nothing to fear." And, "hey, it's not like you can't trust us to do a little bit of ad hoc correcting of laws/statutes that we don't like." Basically, that this administration has the private power to rewrite laws it deems "too restrictive" (Posner's terms) in the war on terror, and keep that rewriting from the public, even when "the public" means here "Congress." That, folks, is abuse of power in a constitutional and ostensibly representational democracy.