Banks have been robbed before while the robbers got away. That doesn't make it legal. OJ Simpson hacked up his wife and he was acquitted. Doesn't make it right.
The fact that the Supreme Court hasn't ruled on whether Lincoln and FDR's transgressions were constitutional doesn't make them right. The court has refused to judge on a lot of unconstitutional gun control legislation but that doesn't mean the 2nd amendment doesn't apply anymore.
It did rule on Lincoln's suspension of habeas corpus in Ex parte Merryman, 17 F. Cas. 144 (1861) and Ex Parte Milligan, 71 U.S. 1 (1866), finding the suspension to be unconstitutional.
FDR's removal of Japanese from the west coast (supported by Congressional action and funding) was ruled constitutional in Toyosaburo Korematsu v. United States, 323 US 214 (1944), but SCOTUS deftly avoided the question of the constitutionality of forced internment in Ex parte Endo, 323 US 283 (1944).
As long as you bring up legalities, Bush's actions are legal.